UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


Tdation  of  the 

TJorJ?  Citf/ 

in  sectoring  ike. 
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in  the  jjxatj'ire  of 


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STATUTORY 


OF  THE 


LAWS  OF  NEW  YORK 


AFFECTING 


RAILROADS 

ENACTED  IN  1892, 

And  Amended  in  1893,  '94,  '95,  '96,  '97,  '98,  '99,  1900,  1901, 
1902,  1903,  1904,  1905  and  1906. 


INCLUDING 


77:0    General  Railroad  Law,   the   General   Corporation  Laic  and 

Xluck    Corporation,  Law,   Transportation   Corporation  Law, 

complete  as  amended,  the  Statutory  Construction  Law 

and  General  Amendments  to  Railroad  Law  of  1892, 

the    Condemnation   Law   and  Law   for  Sale   of 

Corporate   Real  Property    of   1890,   Penal 

Code      Provisions,      with      Amend" 

ments     to     Date,     and     Tax 

Law     as     amended. 

1906. 

INDEXED. 


PREPARED  BY  ANDREW  HAMILTON. 


BAXKS    &    COMPAXY, 
ALBAXY.  X.  Y. 

1906. 


Copyright,  1892,  1893,  1894,  1895,  1896,  1897,  1898, 
By  BANKS  &  BROTHERS. 

Copyright,  1899,  11)00,  1001,  1902,  1903, 
By  BANKS  &  COMPANY. 


Copyright,  1904, 

By  BANKS   &    Co  MI- ANT. 


Copyright,   1905, 
By  BANKS  &  COMPANY. 

Copyright,    1900, 
By  BANKS  &  COMPANY. 


CHA.P.  687. 

AN  ACT  to  amend  the  general  corporation  law. 

APFBOTBD  by  the  Goveraor  May  18,  1892.     Passed,  three-fifths  being  present. 

The  People  of  the   State  of  New    For*,   represented  in  Senate  <md 
jMembly,  do  enact  as  follows: 

The  general  corporation  law  is  amended  to  read  as  follows,  tc  take 
effect  immediately . 

CHAPTER  XXXV  OF  THE  GENERAL  LAWS. 

THB    GENERAL    CORPORATION   LAW. 

SBOTIOJF  1.  Short  title. 

2.  Classification  of  corporations. 

3.  Definitions. 

4.  Qualifications  of  incorporators. 

5.  Piling1  *nd  recording  certificates  of  incorporation. 
*    Corporations  of  the  same  name  prohibited. 

7.  Amended  and  supplemental  certificates. 

8.  Lost  or  destroyed  certificates. 

9.  Certificate  aud  other  papers  as  evidence. 

10.  Prohibition  of  other  than  statutory  powers. 

11.  Grant  of  general  powers. 

12.  Limitation  of  amount  of  property  of  a  non-stock  corporation, 

13.  Acquisition  of  additional  real  property. 

14.  Acquisition  of  property  in  other  states. 

15.  Certificate  of  authority  of  a  foreign  corporation. 

16.  Proof  to  be  filed  before  granting  certificate. 

17.  Acquisition  of  real  property  in  this  state  by  certain  foreign  corporation*. 

18.  Acquisition  by  foreign  corporations  of  real  property  in  this  state  npoo 

judicial  sales. 

19.  Prohibition  of  banking  powers. 

20.  Qualification  of  members  as  voters. 

21.  Proxies. 

22.  Challenges. 

23.  Effect  of  failure  to  elect  directors. 

24.  Mode  of  calling  special  election  of  directors. 

25.  Mode  of  conducting  special  election  of  directors. 

26.  Qualification  of  voters  and  canvass  of  votes  at  special  election*. 

27.  Powers  of  supreme  court  respecting  elections. 

28.  Stay  of  proceedings  in  actions  collusively  brought. 

29.  Quorum  of  directors  and  power  of  majority. 

30.  Directors  as  trustees  in  case  of  dissolution. 

31.  Forfeiture  for  non-user. 

32.  Extension  of  corporate  existence. 

33.  Conflicting  corporate  laws. 

34.  Laws  repealed. 

35.  Saving  clause. 
86.  Construction. 
37.  Law  revived. 

36.  When  notice  of  lapse  or'  time  unaeceoMuy. 

39.  As  to  acts  of  directors. 

40.  Alteration  and  repeal  of  charter. 

41.  Political  contributions  prohibited.  _^ 

SBOTION  1.  Short  title. — Thia  chapter  shall  be  known  M  the  gen- 
eral corporation  law. 

A  clause  reserving  the  right  to  alter,  amend  or  repeal  i»  omitted  from  thii  MX 
&*cause  it  is  contained  in  section  1,  art.  fl.  of  state  Constitutioa. 


776866 


G*NBRAL  CORPORATION 

Th«  right  to  toe  and  b«  sued  is  found  in  section  8,  art.  8,  of  the  state  Concilia 
MOD. 

§2.  Clarification  of  corporations.  —  A  corporation  shall  W 
either, 

1.  A  municipal  corporation. 

2.  A  stock  corporation, 

3.  A  non-stock  corporation,  or 

4.  A  mixed  corporation. 

A  stock  corporation  shall  be  either, 

1.  A  monied  corporation, 

2.  A  transportation  corporation,  or 

3.  A  business  corporation. 

A  non-stock  corporation  shall  be  either, 

1.  A  religious  corporation,  or 

2.  A  membership  corporation. 

A  mixed  corporation  shall  be  either, 

1.  A  cemetery  corporation, 

2.  A  library  corporation, 

3.  A  co-operative  corporation, 

4.  A  board  of  trade  corporation,  or 

6.  An  agricultural  and  horticultural  corporation. 
A  transportation  corporation  .shall  be  either, 

1.  A  railroad  corporation,  or 

2.  A  transportation  corporation  other  than  a  railroad  corporation. 
A  membership  corporation  shall  include  benevolent  orders  and  fir« 

and  soldiers'  monument  corporations. 

A  reference  in  a  general  law  to  a  class  of  corporations  described  in 
accordance  with  this  classification  shall  include  all  corporations  there- 
tofore formed  belonging  to  such  class. 

§  3.  Definitions. —  1.  A  municipal  corporation  includes  a  county, 
town,  school  district,  village  and  city,  and  any  other  territorial 
division  of  the  State  established  by  law  with  powers  of  local  govern- 
ment. 

2.  A  stock  corporation  is  a  corporation   having  a  capital   stock 
divided  into  shares,  and  which   is  authorized  by  law  to  distribute  to 
th*'  holders  thereof  dividends  or  shares  of  the  surplus  profits  of  the 
corporation.     A  corporation    is   not  a  stock  corporation  because  of 
having  issued  certificates  called  certificates  of  stock,  but  which  are  in 
fact  merely  certificates  of  membership  and  which  is  not  authorized  bj 
law  to  distribute  to  its  members  any  dividends  or  share  of  profits 
arising  from  the  operations  of  the  corporation. 

3.  The  term  non-stock  corporation  includes  every  corporation  other 
than  a  stock  corporation. 

4.  A  moneyed  corporation  is  a  corporation  formed  under  or  subject 
to  the  banking  or  the  insurance  law. 

2 


GENERAL  CORPORATION  LAW. 

5.  A   domestic   corporation   is  a  corporation   incorporated  by  or 
under  the  laws  of  the  State  or  colony  of  New  York.     Every  corpora- 
tion  which  is  not  a  domestic  corporation  is  a  foreign  corporation,  ex- 
cept as  provided  by  the  code  of  civil  procedure  for  the  purpose  of  con- 
atruing  such  code. 

6.  The  term  directors,  when  used  in  relation  to  corporations,  shall 
include  trustees  or  other  persons,  by  whatever  name  known,  duly  ap- 
pointed or  designated  to  manage  the  affairs  of  the  corporation. 

7.  The  term,  certificate  of  incorporation,  shall  include  articles  of 
association  or  any  other  written  instruments  required  by  law  to  b« 
filed,  to  effect  the  incorporation  of  a  corporation,  including  a  certified 
copy  of  an  original  certificate  of  incorporation  filed  for  such  purpose 
in  pursuance  of  law. 

8.  The  term,  member  of  a  corporation,  shall  include  every,  person 
having  a  right  to  vote  at  a  meeting  of  the  corporation  for  the  elec- 
tion of  directors,  other  than  a  person  having  a  right  to  vote  only  upon 
a  proxy. 

9.  The  term,  office  of  a  corporation,   means  its  principal  office 
within  the  State  or  principal  place  of  business  within  the  State,  if  it 
has  no  principal  office  therein. 

10.  The  term,  business  of  a  corporation,  when  used  with  reference 
to  a  non-stock  corporation,  includes  the  operations  for  the  conduct  of 
which  it  is  incorporated. 

11.  The  term,  corporate  law  or  laws,  when  used  in  any  law  forming 
a  part  of  the  revision  of  the  general  laws  of  the  State  of  which  this 
chapter  is  a  part,  means  the  general  laws  of  this  State  relating  to  cor- 
porations included  in  such  revision. 

Am'd  by  chap.  672  of  1895.     Took  effect  May  14, 1895. 
Former  section  2  amended. 

The  right  to  be  a  corporation  is  a  distinct,  independent  franchise,  complete 
within  itself,  and  having  no  necessary  connection  with  other  distinct  fran- 
chises, which  are  the  subjects  of  legislative  grants.  Southern  P.  R.  Co.  «. 
Ortow,  32  Fed.  Rep.,  457. 

§  4.  Qualifications  of  incorporators. — A  certificate  of  incorpo- 
ration must  be  executed  by  natural  persons,  who  must  be  of  full  age, 
and  at  least  two-thirds  of  them  must  be  citizens  of  the  United  State! 
and  one  of  them  a  resident  of  this  State.  This  section  shall  not  ap- 
ply to  a  corporation  formed  by  the  reincorporation  or  consolidation  of 
existing  corporations,  or  to  the  reorganization  of  a  corporation  upon 
the  sale  of  the  property  and  franchises  of  a  previously  existing  corpo- 
ration or  otherwise. 

Aui'd  by  chap.  672  of  1895.     Took  effect  May  14,  1895. 

§  5.  Filing  and  recording  certificates  of  incorporation. — 

Every  certificate  of  incorporation  including  the  corporate  name  or  title 
and  every  amended  or  supplemental  certificate,  and  every  certificate 
which  alters  the  provisions  of  any  certificate  of  incorporation  or  any 
amended  or  supplemental  certificate,  hereafter  executed  shall  be  in  the 
English  language,  and  except  of  a  religious,  cemetery,  moneyed,  muni- 
cipal or  fire  department  corporation,  shall  be  filed  in  the  office  of  the 
secretary  of  state,  and  shall  be  by  him  duly  recorded  and  indexe 
books  specially  provided  therefor;  and  a  certified  copy  of  such,  certiti- 

3 


GENERAL  CORPORATION  LAW. 

cate  or  amended  or  supplemental  certificate  with  a  certificate  of  the 
secretary  of  state  of  such  filing  and  record,  or  a  duplicate  original  of 
such  certificate  or  amended  or  supplemental  certificate  shall  be  filed 
and  similarly  recorded  and  indexed  in  the  office  of  the  clerk  of  the 
county  in  which  the  office  of  the  corporation  is  to  be  located,  or,  if  it 
be  a  non-stock  corporation,  and  such  county  be  not  determined  upon  at 
the  time  of  executing  the  certificate  of  incorporation,  in  such  county 
clerk's  office  as  the  judge  approving  the  certificate  shall  direct.  All 
taxes  required  by  law  to  be  paid  before  or  upon  incorporation  and  the 
fees  for  filing  and  recording  such  certificate  must  be  paid  before  filing. 
No  corporation  shall  exercise  any  corporate  powers  or  privileges  until 
auch  taxes  and  fees  have  been  paid. 

Am'd  by  ch.  672  of  1895.     Took  effect  May  14,  1895. 
Am'd  by  ch.  285  of  1902.    In  effect  March  29,  1902. 

8««  section  7,  chap.  611  of  1875,  and  section  1,  chap.  22  of  1881,  both  repealed 
by  this  act. 

The  right  to  file  in  the  office  of  Secretary  of  State,  a  certificate,  by  which  a  body 
ixjlitic  and  corporate  is  to  be  ipso  facto  created,  only  exists  in  behalf  of  those  who 
bring  themselves  within  the  terms  of  the  act.  People  ex  rel.  Blossom  v.  Nelson, 
46  N.  Y.,  477.  The  Secretary  of  State  is  not  required  to  file  a  certificate  unauthor- 
ized by  the  act.  Id. 

As  to  what  was  a  sufficient  designation  of  the  business  of  the  corporation  in  the 
certificate  under  chap.  40  of  1848,  see  People  ex  rel.  Belknap  t).  Beach,  19  Hun, 
359. 

The  certificate  is  conclusive  as  to  location  therein  designated,  as  that  of  the 
principal  office  of  the  company.  Western  Transportation  Co.  v.  Scheu,  19  N.  Y. 
408 ;  Oswego  Starch  Factory  v.  Dolloway,  21  id.,  449 ;  Union  Steamboat  Co.  t>. 
City  of  Buffalo,  82  id.,  351. 

It  is  immaterial  that  the  principal  office  or  place  for  transacting  the  financial 
concerns  of  the  company  is  located  in  a  different  town  or  city.  Oswego  Starch 
Factory  v.  Dolloway,  21  N.  Y.,  449. 

The  tiling  of  the  certificate  in  the  office  of  the  county  clerk  is  sufficient  to  effect 
the  incorporation.  Raisbeck  v.  Oesterricher,  4  Abb.  N.  C.,  444;  Cross  v.  Pinck- 
oeyville  Mill  Co.,  17  111.,  54 ;  Tarbell  v.  Page,  24  id.,  48 ;  Stone  v.  Great  Western 
Oil  Co.,  41  id.,  85 ;  Thompson  v.  Candor,  60  id.,  248  j  Willard  v.  Trustees,  etc.,  66 
Id.,  f>5. 

An  omission  to  file  the  duplicate  in  the  office  of  the  Secretary  of  State  does  not, 
in  such  case,  vitiate  the  incorporation  so  as  to  render  the  members  partners  MM 
between  themselves.  Raisbeck  v.  Oesterricher,  ante. 

An  organization,  such  as  will  create  a  corporation  dejure,  and  can  successfully 
maintain  itself  against  inquiry  on  the  part  of  the  state,  does  not  exist,  until  the  cer- 
tificates of  association  are  filed  in  accordance  with  law.  Childs  V.  Smith,  46  N.  Y., 
84  ;  rev'g  38  How.,  328;  55  Barb.,  45. 

The  office  thus  designated  is  the  one  which  fixes  the  location  of  the  company  for 
the  purpose  of  taxation  upon  its  capital ;  Western  Transportation  Co.  v.  Scheu,  19 
N.  Y.,  408  ;  even  though  such  designation  was  made  for  the  purpose  of  avoiding 
taxation  at  its  principal  business  office.  Id  ;  Oswego  Starch  Factory  t».  Dollaway, 
91  id.,  449  ;  Union  Steamboat  Co.  v.  City  of  Buffalo,  82  id.,  351. 

But  no  corporation  shall  exercise  any  corporate  powers  or  privileges  until  all 
taxes,  required  by  law  to  be  paid  before  incorporation,  and  the  fees  for  filing  and 
recording  the  certificate  are  paid.  Section  3,  chap.  563  of  1890. 

Parties  cannot  take  charter  with  which  they  have  no  concern  and  effect  cor- 
poration de  facto  by  pretense  of  user  thereunder.  Welch  v.  0.  D.  M.  &  R.  Co.,  31 
N.  Y.  State  Rep.,  916. 

Fact*  establishing  that  defendants  occupied  position,  not  of  vendors,  but  of 
teust  and  confidence  towards  plaintiffs.  Brewster  v.  Hatch,  122  N.  Y.,  349. 

Promoter*  of  corporation,  before  its  organization,  occupy  position  of  trust  and 
confidence  towards  thoa«  whom  they  induce  to  invest  in  enterprise,  and  are  liable 
for  daraafM  sustained  by  reason  of  their  acts.  Id. 

Acknowledgments  cannot  be  taken  before  one  of  the  signers  of  the  certificate. 
People  eat  rel.  Erie  R.  Co.  v.  Brd.  of  Railroad  Com'rs,  105  App.  Div.  273. 

§  6.  Corporate  names. — No   certificate   of   incorporation   of    a 

proposed  corporation  having  the  same  name  as  a  corporation  author- 

izeil  to  do  business  under  the  laws  of  this  state,  or  a  name  so  nearly 

ablinj  ii  as  to  be  calculated  to  deceive,  shall  be  filed  or  recorded 

4. 


GENERAL  CORPORATION  LAW. 

in  any  office  for  the  purpose  of  effecting  its  incorporation,  or  of  authorizing  it  to 
d«  business  in  this  state.  A  corporation  formed  by  the  reincorporation,  reorganiza- 
tion or  consolidation  of  other  corporations  or  upon  the  sale  of-  the  property  or  fran- 
chises of  a  corporation,  may  have  the  same  name  as  the  corporation  or  one  of  the 
corporations  to  whose  franchises  it  has  succeeded.  No  corporation  shall  be  here- 
after  organized  under  the  laws  of  this  state,  with  the  word  trust,  bank,  banking, 
insurance,  assurance,  indemnity,  guarantee,  guaranty,  savings,  investment,  loan 
or  benefit  as  part  of  its  name,  except  a  corporation  formed  under  the  banking  law 
or  the  insurance  law. 

Am'd  by  chap.  704  of  1900.  Am'd  by  chap.  9  of  1002.  In  effect  January  80, 
190% 

8«e  lection  1,  chap.  135  of  1870,  and  section  4,  chap.  (Jll'of  1875,  both  repealed ; 
and  also  chap.  322  of  1870,  as  amended  by  chap.  280  of  1876,  and  chap.  38 
of  1891. 

The  Secretary  of  State  must  decide  in  the  first  instance  whether  the  propoe«<J 
name  is,  or  is  not,  within  the  statutory  prohibition.  State  v.  McGrath,  5  8.  W. 
Rep  ,  29.  He  will  not  be  compelled  by  mandamus  to  file  the  certificate,  until  it 
is  shown  that  the  law  has  been  complied  with  by  the  association  in  the  selection 
of  its  name.  Id. 

Change  of  corporate  name,  on  application,  rests  in  the  careful  discretion  of  th« 
court.  Matter  of  Bank  of  Attica,  35  N.  Y.  St.  Rep.,  7u8. 

Granting  or  refusing  order  permitting1  corporation  to  change  name  is  dis- 
cretionary. Matter  of  United  8.  M.  R.  Co.,  24  N.  Y.  St.  Rep.,  648. 

Appellate  court  may  redress  abuse  of  such  discretion.     Id. 

Change  of  corporate  name  will  be  denied,  when  proposed  name  will  infringe 
upon  name  of  another  company  in  same  business.  Matter  of  United  States 
M.  E.  &  C.  Ass'n,  22  N.  Y.  St.  Rep.,  494. 

Com.  Ass.  Co.  v.  Smith,  18  N.  Y.  St.  Rep.,  151 ;  Trust  Co.  v.  Trust  Co.,"  1 
N.  Y.  Supp.,  44;  Matter  of  U.  S.  Mer.  R.  &  C.  Ass'n,  22  N.  Y.  St.  Rep.,  494, 

See  Legal  Aid  Soc.  v.  Co-operative  Legal  Aid  Soc.,  41  Misc.  Rep.,  127. 

Where  certificate  filed  with  name  resembling  that  of  another  corporation  I 
certiorari  will  not  lie  to  correct. 

People  «j?  rel.  Columbia  Chemical  Co.  v.  O'Brien,   101  App.  Div.  296. 

§  7.  Amended  and  supplemental  certificates. — If  in  the  origl- 
aal  or  amended  certificate  of  incorporation  of  any  corporation,  or  if  in 
a  supplemental  certificate  of  any  corporation  any  informality  exist,  or 
if  any  such  certificate  contain  any  matter  not  authorized  by  law  to  b« 
stated  therein,  or  if  the  proof  or  acknowledgment  thereof  shall  be  de- 
fective, the  corporators  or  directors  of  the  corporation  may  make  and 
file  an  amended  certificate  correcting  such  informality  or  defect  or 
striking  out  such  unauthorized  matter ;  and  the  certificate  amended 
shall  be  deemed  to  be  amended  accordingly  as  of  the  date  such 
amended  certificate  was  filed,  and  upon  the  filing  of  such  an  amended 
certificate  of  incorporation,  the  corporation  shall  then  for  all  purposes 
be  deemed  to  be  a  corporation  from  the  time  of  filing  the  original  cer- 
tificate. 

The  supreme  court  may,  upon  due  cause  shown,  and  proof  made, 
and  upon  notice  to  the  Attorney-General,  and  to  such  other  persons  as 
the  court  may  direct,  and  upon  such  terms  and  conditions  as  it  may 
impose, 'amend  any  certificate  of  incorporation  which  fails  to  express 
the  true  object  and  purpose  of  the  corporation,  so  as  to  truly  set  forth 
such  object  and  purpose. 

When  an  amended  or  supplemental  certificate  is  filed,  an  entry  shall 
be  made  upon  the  margin  of  the  index  and  record  of  the  original 
certificate  of  the  date  and  place  of  record  of  every  such  amended 
certificate. 


GENERAL  CORPORATION  LAW. 

The  amendment  of  a  certificate  under  this  section  shall  be  without 
prejudice  to  any  pending  action  or  proceeding,  or  to  any  rights  pre- 
viously accrued. 

Former  section  5  amended. 
,   8««  sections  1,  3,  chap.  135,  of  1870,  both  repealed  by  this  act. 

This  section  is  intended,  it  seems,  to  enable  companies  to  remedy  patent  omis- 
rions;  that  is,  the  omission  of  things  which  are  required  to  be  stated,  and  which, 
being  omitted,  make  the  certificate  imperfect  on  its  face.  Matter  of  N.  Y.,  L.  & 
W.  R.  R.  Co.,  25  Hun,  55U. 

§  8.  Lost  or  destroyed  certificates.  —  If  either  of  the  certificate* 
of  incorporation  shall  be  lost  or  destroyed  after  filing,  a  certified  copy 
of  the"  other  certificate  may  be  filed  in  the  place  of  the  one  so  lost  or 
deutroyed  and  as  of  the  date  of  its  original  filing,  and  such  certified 
oopy  shall  have  the  same  force  and  effect  as  the  original  certificate  had 
when  filed. 

Former  section  6  without  change. 

§  9.  Certificate  and  other  papers  as  evidence.— The  certificate 
of  incorporation  of  any  corporation  duly  filed  shall  be  presumptive 
evidence  of  its  incorporation,  and  any  amended  certificate  or  other 
paper  duly  filed  or  recorded  relating  to  the  incorporation  of  any  cor- 
poration, or  its  existence  or  management,  and  containing  facts  required 
or  authorized  by  law  to  be  stated  therein,  shall  be  presumptive  evi- 
dence of  the  existence  of  such  facts. 

Atn'd  by  chap.  672  of  1895.     Took  effect  May  14,  1895. 

8«e  section  9.  chap.  40,  of  1848,  now  repealed. 

A  copy  of  the  certificate  of  incorporation  filed  in  pursuance  of  the  act,  certified 
by  the  county  clerk,  etc.,  is  presumptive  legal  evidence  of  the  incorporation,  and 
of  the  appointment  of  the  trustees.  Squires  v.  Brown,  22  How.,  35. 

See  section  933  of  the  Code  of  Civil  Procedure.  This  section  provides  that  * 
duly  certified  copy  of  such  certificate  is  evidence  as  though  the  original  is  pro- 
duced. The  originals  are  made  evidence  by  this  act. 

The  production  of  a  copy  of  the  certificate  of  incorporation  filed  with  the  county 
dark,  duly  certified  by  him,  is  sufficient  proof  of  corporate  existence  and  suffi- 
cient answer  to  all  allegations  of  non-incorporation,  except  in  a  direct  proceeding- 
by  the  state  to  annul  the  franchise.  Kingsley  v.  City  of  Brooklyn,  4  Abb.  N.  C., 
444;  Jone*  v.  Dana,  34  Barb.,  398. 

This  section  does  not  exclude  other  modes  of  proving  the  fact  of  incorporation. 
If.  T.  Car-Oil  Co.  v.  Richmond,  6  Bosw.,  213.  Where  no  certificate  can  be  found 
i»  the  county  clerk's  office,  it  ia  competent  to  prove  by  oral  evidence  that  a  certifi- 
cate was  in  fact  filed,  and  to  produced  in  evidence  a  sworn  copy  thereof.  Id.  A 
duly  authenticated  copy  of  the  duplicate  filed  in  the  office  of  the  Secretary  of  State, 
.  with  oral  proof  that  a  like  certificate  was  filed  with  the  county  clerk,  is  sufficient. 
Id. 

that  a  corporation  is  called  upon  to  prove,  to  establish  ita  existence,  in  a  liti- 

;aon  with  individuals  dealing  with  it,  is  ita  charter  and  usee  under  it.     Jone*  •. 
na,  94  Barb.,  395. 

What  act*  are  sufficient  to  establish  the  existence  of  a  corporation  d*  facto.  De 
Witt  «.  Hastings,  8  J.  &  8p.,  463  ;  69  N.  T.,  618. 

Bank,  by  receiving  and  collecting  checks  drawn  in  favor  of  corporation.,  is 
••topped  from  denying  its  corporate  character.     C.  M.  Co.  t>.   Her.  Bk.,  59  Hun, 
ML 
Those  dsaHnf  with  body  professing  to  be  corporation  can  not  question  ita 


Kl 
i 


GENERAL  CORPORATION  LAW. 

rate  existence  for  the  purpose  of  charging  its  members  individually  aa  partner*. 
Pemarest  v.  Flack,  16  Daly,  337. 

Stockholders  are  estopped  to  deny  the  lawful  existence  of  corporations  whiek 
they  have  helped  to  create.  Dorris  •».  French,  4  Hun,  292. 

A  person,  who  has  subscribed  for  the  stock,  acted  as  a  trustee  of  the  corpora- 
tion, took  part  in  its  management  and  contracted  with  it  as  a  corporation,  can  not 
dispute  the  validity  of  the  incorporation  in  an  action  under  this  section.  Phoenix 
W.  Co.  t>.  Badger,  67  N.  Y.,  294 ;  Eaton  v.  Aspinwall,  19  id.,  119  ;  Buffalo,  etc., 
R.  R.  Co.  v.  Cary,  26  id.,  75  ;  Aspinwall  v.  Sacchi,  57  id.,  331 ;  Whit*  v.  Ross,  IS 
Abb.,  66. 

§  10.  Limitation  of  powers. — No  corporation  shall  possess  or 
exercise  any  corporate  powers  not  given  by  law,  or  not  necessary  to 
'  the  exercise  of  the  powers  so  given.     The  certificate  of  incorporation 
of  any  corporation  may  contain  any  provision  for  the  regulation  of  the 
business  and  the  conduct  of  the  affairs  of  the  corporation,  and  any 
limitation  upon  its  powers,  or  upon  the  powers  of  its  directors  and 
stockholders,  which  does  not  exempt  them  from  the  performance  of 
any  obligation  or  the  performance  of  any  duty  imposed  by  law. 
Am'd  by  chap.  672  of  1895.    Took  effect  May  14,  1895. 

See  section  3,  title  3,  chap.  18,  part  1,  R.  S.,  now  repealed. 

Everything  relating  to  the  organization  of  a  private  corporation  is  mere  matter 
of  individual  contract.  Troy  &  R.  R  R.  Co.  v.  Kerr,  17  Barb.,  581.  The  com- 
pact, which  is  to  clothe  its  members  with  an  artificial,  corporate  existence,  must 
receive  the  voluntary  assent  of  the  whole.  Id.  The  rule  is  the  same  as  to 
amendments  to  the  charter  or  act  of  incorporation.  Id. 

Unless  restrained  by  law,  every  corporation  has  the  incidental  power  to  make 
any  contract  nece&aary  to  advance  the  objects  for  which  it  was  created.  Legrand 
v.  Man.  Mer.  Ass'n,  80  N.  Y.,  638. 

A  corporation  has  no  other  powers  than  such  as  are  specifically  granted  by  the 
act  of  incorporation,  or  are  necessary  for  the  purpose  of  carrying  into  effect  the 
powers  expressly  granted.  People  ex  rel.  Attorney-General  t>.  Utica  Ins.  Co., 
15  Johns.,  358. 

Corporations  can  exercise  no  powers  over  the  corporators  beyond  those  con- 
ferred by  the  charter  to  which  they  have  subscribed,  except  on  the  condition  of 
their  agreement  or  consent.  Hartford  &  N.  H.  R.  R,  Co.  v.  Croswell,  5  Hill,  383. 

Corporations  have  all  the  powers  of  ordinary  parties  as  respects  their  contract, 
except  when  they  are  restricted  expressly  or  by  necessary  implication.  Brady  t>. 
Mayor,  etc.,  1  Barb.,  590. 

Corporations  can  only  exercise  the  powers  expressly  or  incidentally  conferred. 
Curtis  v.  Leavitt,  15  N.  Y.  9,  54. 

Corporations  have  no  other  powers  than  such  as  are  expressly  granted,  or  such 
as  are  necessary  to  carry  into  effect  the  powers  expressly  granted.  Hodge*  ». 
City  of  Buffalo,  2  Denio,  110. 

A  corporation  under  this  act,  can  purchase,  hold  and  convey,  any  real  or  per- 
sonal estate  necessary,  to  enable  it  to  carry  on  its  transactions.  De  Qroff  «. 
American  Linen  Thread  Co.,  21  N.  Y.,  124. 

The  manufacturing  of  goods,  necessarily  implies  the  power  of  disposing  of  them 
when  manufactured,  and  also  of  receiving  in  payment  money,  or  property  readily 
convertible  into  money,  or  provisions  or  stores,  for  the  payment  of  its  employee*. 
Id. 

A  corporation,  after  having  received  from  the  other  contracting  party  the  full 
consideration,  can  not  be  permitted  to  interpose  the  defense  of  ultra  viret,  in  order 
to  excuse  itself  from  that  portion  of  the  contract  which  imposes  upon  it  an  obliga- 
tion. Id.  Rider  Life  Raft  Co.  v.  Roach,  97  id,  378. 

Manufacturing  corporation  cannot  become  accommodation  endorser.  Nat.  Park 
Bk.  v.  Q.  A.  M.  W.  &  8.  Co.,  116  N.  Y.,  281;  rev'g  21  J.  &  S.,  367. 

Fact  that  maker  had  note  discounted,  is  notice  to  bank.     Id. 

Where  accommodation  paper,  executed  in  name  of  president,  has  been  ratified 
by  stockholders,  and  no  other  rights  intervene,  it  may  be  enforced  against  coi* 
poration.  Martin  v.  N.  F.  P.  Co.,  122  N.  Y.,  185. 

Corporation  can  not  make  accommodation  endorsement.  Wahligw.  S.  P.  M.  Co., 
35  N.  Y.  St.  Rep.,  864. 

Act  of  treasurer  is  presumed  to  be,  in  such  case,  ultra  mres.     Id. 

Corporation  can  not  become  surety  on  lease.  Filon  v.  M.  B.  Co.,  38  N.  Y.  St. 
Rep.,  602. 

Railroad  corporation  has  power  to  make  a  lease  for  a  term  of  years.  Bevendfe 
o.  N\  Y.  E.  R  R.  Co.,  112  N.  Y.,  1. 


GENERAL  CORPORATION  LAW. 

Stockholders  are  not  parties  to  lease  of  railroad  to  another  company.     Id. 

Directors  have  power  to  make  necessary  reduction  of  rental  reserve  in  leaM,  if 
done  in  good  faith.  Id. 

Section  1778  of  Code  does  not  apply  to  action  against  corporation  as  endorser. 
Shorer  v.  T.  P.  &  P.  Co.,  119  N.  Y.,  483 ;  24  N.  Y.  St.Rep.,  868. 

In  absence  of  any  prohibition,  express  or  implied,  repurchase  of  landscript  by 
company,  without  intending  to  cancel  or  retire  it,  will  not  pi-event  company  from 
using  it  again,  consistently  with  rights  of  stockholders  and  company  itself.  Rogers 
c.  Phelps,  31  N.  Y.  St.  Rep.,  872. 

Banking  association  may  sue  in  its  corporate  name.  Columbia  Bank  t>.  Jack- 
son, 24  N.  Y.  St.  Rep.,  738. 

Persons  dealing  with  corporation,  is  chargeable  with  notice  of  its  powers  and 
extent  of  power  and  authority  of  its  agents  or  officers.  Jemison  t>.  Citizens'  S.  Bk., 
122  N.  Y.,  135. 

Speculative  contracts  for  sale  or  purchase  of  stock  by  savings  bank  are  ultra 
vires.  Id. 

Authority  to  buy  and  sell  exchange,  bullion.,  etc,  does  not  embrace  speculative 
contracts  in  cotton  futures.  Id. 

Corporation  can  not  be  held  liable  for  goods  sold  to  company  of  same  name,  OD- 
ground  of  identity,  where  it  was  organized  after  such  sale  and  has  different  offi- 
cers and  stockholders  with  single  exception.  Wyckoff  «.  U.  L.  &  T.  Co.,  33  N.  Y. 
St.  Rep.,  422. 

When  burden  is  on  receiver  to  show  that  corporate  contract  was  not  authorised 
or  ratified  by  trustees.  Patterson  v.  Robinson,  116  N.  Y.,  193. 

Plea  of  ultra  vim  is  no  defense,  where  corporation  has  executed  contract  in  good 
faith  and  party  has  reaped  benefit.  Watts  C.  Co.  v.  Yuengling,  51  Hun,  302. 

Defense  of  ultra  vires,  based  upon  foreign  statutes,  must  be  pleaded.  Griesa  v 
Mass.  B.  Ass'n,  39  N.  Y.  St.  Rep.,  1. 

Non-resident  plaintiff  may  sue  foreign  corporation  in  courts  of  this  state,  when 
cause  of  action  arose  here.  Id. 

Where  validity  of  ultra  vires  contract  is  recognized,  and  performance  accepted 
by  company,  court  will  not  deny  party  benefit  of  its  provisions.  Palmer  v.  C.  H, 
Cem.,  122  N.  Y.,  429. 

Where  compromise  agreement  expressly  states  that  it  is  made  on  behalf  of  sucb- 
certificate-holders  as  should  assent  thereto,  it  binds  assenting  holders  only. 
Humphreys  v.  N.  Y.,  L.  E.  &  W.  R.  R.  Co.,  21  N.  Y.  St.  Rep.,  750. 

A  party,  dealing  with  a  corporation,  is  presumed  to  know  the  extent  of  ita  cor" 
porate  powers.  Akin  v.  Blanchard,  32  Barb.,  527;  Adriance  v.  Roome,  52  Id.. 
899  ;  Dabney  v.  Stephens,  40  How.,  341  ;  Alexander  v.  Cauldwell,  83  N.  Y.,  480. 

But  he  has  a  right  to  presume,  in  the  absence  of  express  notice  to  the  contrary 
that  the  corporation  does  ita  duty  and  acts  within  and  according  to  ita  charter. 
Akin  v.  Blanchard,  ante. 

The  officers  can  not  bind  the  company  except  within  the  limits  prescribed  by  the 
charter  and  by-laws.  Adriance  v.  Roome,  52  Barb.,  399. 

They  are  special  and  not  general  agents.     Id. 

There  is  no  grant  of  power  in  the  name  by  which  the  officer  is  designated; 
•specially  when  the  authority  given  is  specified,  in  the  by-laws.  Id. 

Where  the  officers  are  not  authorized  by  the  act  of  incorporation  or  by-laws  to 
do  a  wrtain  act,  the  company  can  not  be  held  liable  therefor  except  upon  proof : 

1.  That  a  general  or  particular  authority  for  that  purpose  was  conferred  upon 
•uch  officers  or  either  of  them,  or 

2.  That  the  conduct  of  the  company  was  such  as  to  create  a  well  founded  belief 
that  such  general  or  particular  authority  had  been  delegated,  or 

3.  That  such  acta,  though  unauthorized,  were  subsequently  ratified  by  the  board 
of  trustees.     Dabney  v.  Stevens,  40  How.,  341. 

It  can  not  be  presumed  that  an  agent  had  authority  to  transact  business  in  which 
the  corporation  itself  was  not,  by  ita  charter,  authorized  to  engage.  Alexander  «. 
Cauldwell,  83  N.  Y.,  480. 

The  power  of  an  incorporated  company  to  borrow  money,  when  it  has  not  been 
directly  conferred  by  its  charter,  extends,  it  tecmt,  to  all  cases  where  it  is  essential 
to  the  transaction  of  its  ordinary  business.  Beers  v.  Phoenix  Glass  Co.,  14  Barb., 
868. 

In  such  case,  it  is  incidental  and  in  effect  included  in  the  grant  of  the  principal 
power.  Id.  But  this  power  should  be  limited  to  and  for  the  appropriate  business 
of  the  corporation.  Id. 

8 


GENERAL  CORPORATION  LAW. 

i  / 

Neither  the  use  of  the  corporate  seal,  nor  a  resolution  of  the  trustees,  la  n«ces- 
eary  to  make  the  contract  of  a  corporation  valid.  Hoag  v.  Lamont,  60  N.  Y.,  98. 

A  corporation,  organized  under  this  act,  may,  upon  a  sale  of  a  portion  of  its  lands 
to  another  similar  corporation,  agree  to  advance  moneys  to  the  latter,  to  be  used 
in  erecting  buildings  on  the  premises  conveyed.  Greenpoint  8.  Co.  v.  Whitin,  (59 
N.  Y.,328. 

A  director,  trustee  or  an  executive  officer  of  a  corporation  is,  aa  a  general  rule, 
without  power  to  bind  it  or  its  shareholders  by  a  contract  authorized  by  or  entered 
into  with  himself  and  for  his  individual  benefit.  Welch  •».  I.  &  T.  N.  Bk.,  122  N. 
Y.,  177.  But  if  such  contract  is  just  as  between  the  parties,  and  all  the  share- 
holders and  directors  and  trustees  are  competent  to  assent,  and,  with  full  knowl- 
edge of  the  terms  of  the  contract,  do  assent  and  direct  that  it  be  made,  it  is  binding 
on  the  corporation  and  can  not  be  avoided  by  its  shareholders  or  by  persons  who 
subsequently  become  its  creditors.  Welch  v.  I.  &  T.  N.  Bk.,  122  N.  Y.,  177. 

A  corporation  that  has  permitted  certain  individuals  to  take  possession  of  its 
property,  seal  and  records,  and  to  act  as  its  trustees,  and  has  in  fact  held  them 
out  to  the  world  as  its  trustees,  and  as  authorized  to  act  for  it,  is  as  much  as  an 
individual  would  be,  estopped  from  questioning  the  acts  of  its  agents  within  the 
scope  of  their  apparent  authority.  Lovett  v.  German  R.  Ch.,  12  Barb.,  67. 

A  manufacturing  corporation  may  temporarily  lease,  it  seems,  its  property  to 
some  person  who  will  continue  and  carry  on  its  business.  Denike  v.  N.  Y.  &  R. 
L.  &  C.  Co.,  80  N.  Y.,  599. 

The  general  rules  of  law  relating  to  contract  and  property  rights  apply  to  cor- 
porations as  well  as  to  individuals,  and  the  principles  of  law  of  agency  apply  to 
both  alike.  Martin  v.  N.  F.  P.  Mfg.  Co.,  122  N.  Y.,  165. 

The  stockholders  may,  where  no  rights  of  creditors  intervene  and  no  fraud  ie 
claimed,  ratify  the  acts  of  the  president  and  bind  the  corporation  for  the  payment 
of  a  debt  evidenced  by  notes  made  and  discounted  for  his  accommodation.  Id. 

When  a  transaction  has  been  ratified  by  all  the  owners  of  the  corporate  prop- 
erty, formal  action  by  the  board  of  trustees  is  unnecessary.  Id. 

In  such  case,  the  company  can  not  be  heard  to  impeach  it  on  the  ground  that  it 
is  without,  or  contrary  to  authority.  Id. ;  Kent  •».  Quicksilver  M.  Co.,  78,  N.  Y., 
159. 

Additional  powers  conferred  upon  railroad  companies  are  enumerated  in  section 
4,  chap.  565  of  1890;  on  Ferry  corporations,  in  section  4,  chap.  566  of  1890;  on 
Stage  Coach  corporations,  in  section  22,  chap.  566  of  1890;  on  Tramway  corpora- 
tions, in  section  31,  chap.  566  of  1890;  on  Pipe  Line  corporations,  in  section  49, 
chap.  566  of  1890;  on  Gas  and  Electric  Light  corporations,  in  section  61,  chap.  566 
of  1890;  on  Waterworks  corporations,  in  section  82,  chap.  566  of  1890. 

All  corporations,  whether  foreign  or  domestic,  are  debarred  from  alleging  usury 
in  the  courts  of  our  state,  no  matter  where  the  contract  was  made,  or  by  what  lex 
loci  it  was  to  be  governed.  Rosa  v.  Butterfield,  33  N.  Y.,  665.  Nor  can  any  cor- 
poration maintain  an  action  to  invalidate  its  contracts  on  the  basis  of  usury.  Id.; 
Butterworth  n.  O'Brien,  28  Barb.,  187;  Hungerford's  Bk.  ?>.  Dodge,  30  id.,  629; 
Southern  L.  I.  &  T.  Co.  v.  Packer,  17  N.  Y.,  51. 

Corporations  are  prohibited  from  interposing  the  defense  of  usury  in  any  action. 
Butterworth  v.  O'Brien,  23  N.  Y.,  75.  This  deprives  them  of  the  right  to  recover 
back  money  paid  by  them  in  excess  of  legal  interest.  Id.  The  receiver  stands 
in  no  better  position.  Id.;  Rosa  v.  Butterfield,  33  N.  Y.,  665.  Nor  do  the  sureties 
of  a  corporation.  Id.;  Stewart  v.  Bramhall,  74  N.  Y.,  85;  Union  Nat.  Bk.  v.  Wheeler, 
60  id.,  612;  Smith  v.  Alvord,  63  Barb.,  415. 

It  can  not  sue  for  the  surrender  of  securities  pledged  by  it  as  collateral  to  a 
usurious  agreement.  Isle  of  Wight  Co.  v.  Smith,  51  Hun,  662. 

Corporation  can  not  sue  for  surrender  of  securities  pledged  as  collateral  to 
usurious  debt.  Isle  of  Wight  Co.  t>.  Smith,  51  Hun,  563. 

An  action  for  malicious  prosecution  will  lie  against  a  corporation.  Morton  «. 
Met.  L.  Ins.  Co.,  34  Hun,  366. 

It  is  liable  for  slandering  the  business  of  another  corporation.  Buffalo,  etc.,  Co. 
t>.  Standard  O.  Co.,  42  Hun,  153  ;  106  N.  Y.,  669. 

It  may  be  liable  even  when  a  fraudulent  or  malicious  intent  in  fact  is  necessary 
to  be  proved.  Reed  t>.  Home  Sav.  Bk.,  130  Mass.,  445.  The  fraud  or  malice  of 
its  authorized  agents  is  impntable  to  the  corporation.  Id. 

A  corporation  may  become  a  party  to  a  conspiracy  and  liable  for  the  action  of 
all  the  conspirators.  Dodge  «.  Bradstreet  Co.,  59  How.,  104  ;  Morton  «.  Met.  Life 


GENERAL  CORPORATION  LAW. 

Ins.  Co.,  34  Hun,  367  ;  103  N.  Y  .  645 ;  Rruleirtz  t>.  Eastern  R.  R.  Co.,  140  Mas*. 
575 ;  Western  News  Co.  v.  Wilmarch,  33  Kan.,  510  •,  Buffalo  L.  0.  Co.  v.  Standard 
O.  Co.,  106  N.  Y.,  669. 

A  corporation  is  liable  for  the  damage  resulting  from  a  wrongful  transfer  of 
stock  on  the  books  of  the  company.  Brisbane  ».  D.  L.  &  W.  R.  R.  Co.,  13  W.  Dig., 
1S4  ;  N.  Y.  &  N.  H.  R.  R.  Co.  r.  Schuyler,  34  N.  Y.,  30. 

Where  the  stock  is,  by  the  terms  of  the  charter  or  by-laws,  transferable  only  on 
the  corporate  books,  the  purchaser  receiving  a  certificate,  with  power  of  attorney, 
etc.,  acquires  the  entire  interest  of  the  vendor,  with  ail  his  rights.  N.  Y.  &  N.  H. 
R.  R.  Co.  t>.  Schuyler,  34  N.  Y.,  30.  If  he  neglects  to  have  the  transfer  made  on 
the  books  until  after  such  stock  is  transferred  to  a  bona  fide  holder  without  notice, 
he  loses  his  right  to  demand  and  have  the  transfer  thereof  made  to  him.  Id.  But 
the  corporation  will  be  liable  to  the  holder  of  such  certificate  for  permitting  the 
•lock  to  be  transferred  to  another,  where  it  has  notice  of  these  outstanding  cer- 
tificate*. Id. 

A  corporation  is  liable  for  the  acts  of  a  servant,  within  the  general  scope  of  hi* 
employment,  while  engaged  in  his  master's  business,  and  done  with  a  view  to  the 
furtherance  of  that  business  and  the  master's  interest,  whether  they  *re  dona 
negligently,  wantonly  or  even  willfully.  Mott  v.  Consumers'  Ice  Co.,  73  N.  Y., 
543  ;  Buffalo  L.  O.  Co.  r.  8  0.  Co.,  42  Hun,  153. 

A  pleading  should  allege  that  the  acts  complained  of  were  done  by  the  corpora- 
tion and  not  by  its  agents.  Buffalo,  etc.,  Co.  v.  Standard  O.  Co.,  42  Hun,  153  ; 
StodJard  r.  Onondaga  County,  12  Barb.,  575. 

Promoters  are  liable  for  work  done  or  material  furnished  for  company  on  their 
order,  in  case  it  is  never  actually  incorporated.  Hub.  Pub.  Co.  ?».  Richardson,  87 
N.  Y.  St.  Rep.,  541. 

Contemplated  corporation  is  liable  for  work  ordered  by  corporators  for  Its  bene- 
fit. Grier  v.  H.  H.  &  Co.,  38  N.  Y.  St.  Rep.,  462. 

Corporation,  not  in  existence  at  time  of  employment  is  not  liable  on  agreement 
made  between  third  party  to  divide  commission  tor  services  to  be  rendered  on  sale 
to  be  made  by  corporation.  Wilbur  v.  N.  Y.  E.  C.  Co  ,  58  Super.,  539. 

Holmes,  etc.,  Co.  v.  Holmes,  etc.,  Co..  53  Hun,  52;  Sistare  r.    Best,  88  N.  Y., 
037;  Crocker  ».  Whitney,   71  id.,  170;  Pratt  f.  Short.  79  id.,  437  ;  Whitney  Arms 
Co.  r.  Barlow,  68  id..  62  ;  Watts-Campbell  Co.  v.  Yuengling,  51  Hun,  302  ;  Holmes, 
etc.,  v.  Willard,  5  N.  Y.  Supp.,  610;   Starin  «.  Edson,  112  N.  Y.,  206;  Leslie  v 
Lorillard.  110  id  ,  519. 

In  action  to  foreclose  mortgage  presumption  is  that  holders  are  bona  fide 
owners  and  burden  of  showing  want  of  consideration  is  upon  defendant    Atlantic 
Trust  Co.  v.  Crystal  Water  Co.,  72  App.  Div.,  539.     See  also  A.  T  Co  v  N  Y 
C.   Suburban   Water  Co.,  75  App.  Div.,  854.     Defense   of  ultra  vires  must  be 
pleaded.     Hess  v.  W,  &  ].  Sloane,  66  App.  Div.,  522. 

§  11.  Grant  of  general  powers. — Every  corporation  as  such  hai 
power,  though  not  specified  in  the  law  tinder  which  it  is  incorporated' 

1.  To  have  succession  for  the  period  specified  in  its  certificate  of  in- 
corporation or  by  law,  and  perpetually  when  no  period  is  specified. 

Z.  To  have  a  common  seal,  and  alter  the  same  at  pleasure. 

3.  To  acquire  by  grant,  gift,  purchase,  devise  or  bequest,  to  hold 
and  to  dispose  of  such  property  as  the  purposes  of  the  corporation 
shall  require,  subject  to  such  limitations  as  may  be  prescribed  by  law. 

4.  To  appoint  such  officers  and  agents  as  its  business  shall  require, 
and  to  fix  their  compensation,  and 

5.  To  make  by-laws,  not  inconsistent  with  any  existing  law,  for  the 
management  of  its  property,  the  regulations  of  its    affairs,  and  the 
transfer  of  its  stock,  if  it  has  any,  and  the  calling  of  meetings  of  ita 
members.     Such  by-laws  may  also    fix  the  amount  of  stock,  which 
must  be  represented  at  meetings  of  the  stockholders  in  order  to  con- 
stitute a  quorum,  unless  otherwise  provided   by  law.     By-laws  duiy 
adopted  at  a  meeting  of  the  members  of  the  corponition  shall  control 

n  of  its  directors.     No  by-law  iidop'ed  by  tV  board  of  direc- 
tors regulating  the  election  of  directors  or  officers  shall  be  valid  unless 

10 


GENERAL  CORPORATION  LAW. 

published  for  at  least  once  a  week  for  two  successive  weeks  in  a  news- 
paper  in  the  county  where  the  election  is  to  be  held,  and  at  least  thirty 
days  before  such  election.  Subdivisions  four  and  five  of  this  section 
shall  not  apply  to  municipal  corporations. 

Am'd  by  chap.  672  of  1895.    Took  effect  May  14,  1886. 
Former  section  8  amended. 

See  section  1,  title  3,  cfcap.  18,  part  I,  R.  S.;  section  6,  title  4,  chap.  18,  part  1, 
R.  8.;  sections  7,  26,  chap.  40  of  1848  ;  section  2,  chap.  611  of  1875,  and  chap.  172 
of  1850  ;  all  of  which  are  repealed. 

The  powers  of  corporations  are  expressly  limited  to  those  specified  in  the  statute 
or  conferred  by  their  charters.  Matter  of  McGraw  v.  Cornell  University,  45  Hun, 
954  ;  Halstead  v.  Mayor,  etc.,  3  N.  Y.,  433;  Riley  v.  City  of  Rochester,  9  id.,  64. 

The  doctrine  that  no  corporate  act  can  be  binding  without  being  in  writing1,  or 
under  the  corporate  seal,  has  long  ceased  to  be  maintained.  Leinkauf  v.  Caiman, 
HON.  Y.,  50;  Danforth  v.  Schoharie  T.  Co.,  12  Johns.,  227;  Trustees,  etc.,  v. 
Cagger,  6  Barb.,  576;  Moss  v.  Averell,  10  N.  Y.,  449. 

The  power  to  purchase  lands  was,  at  common  law,  incident  to  all  corporations, 
unless  they  were  specially  restrained  by  their  charters  or  by  statute.  Nicoll  v. 
N.  Y.  &  E.  R.  R.  Co.,  12  N.  Y.,  121. 

Where  a.  member  of  a  corporate  body  has  contracted  with  it  in  its  corporate 
capacity,  neither  he  nor  it  can  dispute  its  corporate  character,  if  the  contract  has 
been  properly  executed.  Whitford  v.  Laidler,  94  N.  Y.,  145 ;  Eaton  «.  Aspinwall, 
19  id.,  119 ;  Buffalo,  etc.,  Co.  v.  Gary,  26  id.,  78.  It  is  sufficient  if  it  is  a  copora- 
tion  de  facto,  exercising  the  powers  and  functions  of  a  dejure  corporation,  and 
assuming  to  act  as  such.  Id. 

Where  a  corporation  is  authorized,  under  some  circumstances,  to  hold  and  con- 
vey real  estate,  it  will  be  presumed,  in  the  absence  of  proof  to  the  contrary,  that 
peal  estate,  conveyed  by  it,  was  held  and  conveyed  in  pursuance  of  its  powers. 
Farmers'  L.  &  T.  Co.  «.  Curtis,  7.  N.  Y.,  466. 

Corporations,  though  limited  in  their  duration,  may  purchase  and  hold  a  fee,  and 
may  sell  such  real  estate  whenever  they  shall  find  it  no  longer  necessary  or  con- 
venient. Nicoll  v.  N.  Y.  &  E.  R.  R.  Co.,  12  N.  Y.,  121  ;  5  Denio,  389. 

A  by-law  giving  to  the  senior  bailiff  a  casting  vote  in  case  of  a  tie,  was  held  to  be 
illegal.  So,  a  by-law  imposing  an  oath  of  office  where  none  was  required  by  the 
charter,  was  declared  to  be  invalid.  Rex  v.  Dean,  1  Strange,  536.  So,  a  by-law 
restricting  or  extending  the  right  of  admission  of  a  member,  or  of  eligibility  to 
office,  or  prescribing  new  or  additional  tests  or  qualifications  to  voters,  was  held 
to  be  unlawful.  Id.,  227.  So,  a  by-law  made  by  a  company  in  a  corporation,  to 
restrain  the  number  of  apprentices  to  be  taken  by  any  of  its  members,  was  declared 
to  be  void.  King  t>.  Wardens,  etc.,  7  Term,  540 ;  King  v.  Tappenden,  3  East,  186. 
So,  it  baa  been  held  that,  while  the  number  of  electors  might  be  narrowed  or  fixed 
by  a  by-law,  the  eligibility  of  members  could  not  in  that  manner  be  changed. 
Rex  v.  Spencer,  3  Burr.,  1827  ;  People  ex  rel.  Israel  V.  Tibbets,  4  Cow.,  358  ;  Peopl* 
ex  rel.  Barker  v.  Kip,  id.,  3S2. 

The  directors  can  not  pass  any  by-law  at  variance  with  the  positive  provisions 
of  the  act  of  incorporation.  People  ex  rel.  Barker  i>.  Kip,  4  Cow.,  382,  note. 

The  by-laws  of  a  corporation,  made  in  pursuance  of  its  special  charter,  or  of  the 
genei-al  laws  under  which  it  is  organized,  are  binding  on  all  members  and  others 
acquainted  with  the  method  of  doing  business.  Driscoll  t>.  West  B.  &  C.  Mfg. 
Co.,  59  N.  Y.,  96. 

A  by-law  allowing  the  stockholders,  on  paying  thirty  per  cent,  on  their  shares, 
to  forfeit  their  stock,  is  void  as  against  creditors.  Slee  v.  Bloom,  19  Johns.,  456. 
But  a  by-law,  that  any  stockholder  paying  fifty  per  cent,  on  his  shares,  shall  b« 
discharged  from  all  future  calls  on  his  subscription,  etc.,  other  than  proceeding 
by  way  of  forfeiture  was  held  to  be  valid.  Id. 

An  incorporated  company  has  no  power  to  make  a  by-law,  subjecting  to  forfeit- 
ure shares  owned  by  individuals  in  the  stock  of  the  company  for  the  non-payment 
ef  installments  due  upon  such  shares,  unless  the  power  to  pass  such  by-law  ia  ex- 
preasly  granted  by  its  charter  or  act  of  incorporation.  Matter  of  Long-  I.  R.  R. 
Co.,  19  Wend.,  37. 

A  by-law  declaring  that  the  ordinary  business  of  the  corporation  may  be  trans- 
acted by  a  quorum  of  five  directors,  the  whole  number  being  twenty-three,  Li  a 
valid  regulation.  Hoyt  v.  Thompson's  Executors,  19  N.  Y.,  207.  Such  by-Uw 

11 


GENERAL  CORPORATION  LAW. 

embraces  the  general  business  of  the  corporation,  including  as  incident  thenstc 
the  power  of  pledging  or  assigning  its  assets  for  the  purpose  of  securing  a  debt, 
Id. 

By-laws,  which  forbid  a  member  to  work  at  his  trade  at  such  prices  as  h< 
chooses  to  accept,  and  compel  him  to  join  in  a  "strike"  by  punishing  him  for  re- 
fuaing  to  do  so,  are  void  as  ag-aiust  public  policy.  People  ex  rel.  Doyle  v.  N.  Tt 
Ben.  Soc.,  3  Hun,  361. 

Every  by-law,  made  in  pursuance  of  a  general  or  incidental  authority,  moat  N 
a  reasonable  one.  Driscoll  v.  West  B.  &  0.  Mfg.  Co.,  69  N.  Y.,  96.  It  is  not  a 
reasonable  by-law,  which,  without  authority  express  or  to  be  clearly  implied,  in- 
terferes with  the  common  rights  of  property  and  the  dealings  of  third  persons,  and 
prevents  the  purchase  or  delivery  of  property.  Id. 

A  corporation  has  no  power,  in  the  absence  of  a  provision  to  that  effect  in  its  ar- 
ticles of  association,  to  create  or  declare  a  lien  upon  its  stock  by  by-lavr,  or  ic 
refuse  to  permit  a  transfer  until  the  indebtedness  of  the  stockholder  to  the  com- 
pany is  paid.  Id.  A  bonafide  purchaser  of  stock,  without  knowledge  or  notice  ol 
such  a  by-law,  is  not  bound  by  it.  Id.  lie  can  compel  the  transfer  to  him,  upon 
the  books  of  the  corporation,  of  the  stock  purchased.  Id.  But  does  not  section  96 
of  chap.  664  of  1890  authorize  such  by-law  with  the  proviso  therein  mentioned  ! 

In  the  absence  of  some  power  to  change  the  relative  value  of  the  shares'  conferred 
by  statute  on  the  articles  of  association,  no  change  can  be  made  without  the  con- 
sent of  all  the  stockholders.  Campbell  v.  American  Zylonite  Co.,  122  N.  Y.,  455 : 
Kent  v.  Quicksilver  M.  Co.,  78  id.,  159. 

Rudolph  r.  Southern  B.  League,  23  Abb.  N.  C.,  199;  Austin  r.  Searing.  16 
N.  Y.,  112;  Protective  Ass'n  v.  McGrath,  23  N.  Y.  St.  Rep.,  209;  Loubat  v. 
Le  Roy,  15  Abb.  N.  C.,  20;  Lafond  v.  Deems,  81  N.  Y.,  514;  People  v.'  Society. 
32  id.,  194. 

Power  of  president  to  bind  corporation.  See  Curtis  v.  Notalie  Anthracite 
Coal  Co.,  39  Misc.,  586. 

President  resigning  has  right  to  demand  that  he  be  relieved  of  his  stock. 
Joseph  v.  Raff.  82  App.  Div.,  47.  See  also  Zeltner  v.  Henry  Zeltner  Brewing 
Co.,  174  N.  Y.,  247. 

By-law  requiring  consent  of  90  per  cent,  of  stockholders  to  change  number 
of  directors,  is  invalid. 

'Katz  w.  H.  &  H.  Mfg.  Co.,  109  App.  Div.  49. 

§  12.  Enlargement  of  limitations  upon  the  amoniit  of  the  property 
of  non-stock  corporations. — If  any  general  or  special  law  heretofore  pa'ssed, 
or  any  certificate  of  incorporation,  shall  limit  the  amount  of  property  a  cor- 
poration other  than  a  stock  corporation  may  take  or  hold,  such  corporation 
may  take  and  hold  property  of  the  value  of  three  million  dollars,  or  less,  or  the 
yearly  income  derived  from  which  shall  be  five  hundred  thousand  dollars  or 
less,  notwithstanding  any  >uch  limitations.  In  computing  the  value  of  such 
property,  no  increase  in  value  arising  otherwise  than  from  improvements 
made  thereon  shall  be  taken  into  account. 

Am'd  by  chap.  400  of  1894.     Went  into  effect  May  3,  1894. 

§  13.   Acquisition  of  additional  real  property. — When  any  corporation 
••t  a  lifo  insurance  corporation,  shall  have  sold  or  conveyed  any  part  of  its 
real  property,  the  supreme  court  may,  notwithstanding  any  restriction  of  a 
:  i]  nr  special  law.  authorize  it  to  purchase  and  hold  from  time  to  time 
other   real  property,  upon  satisfactory  proof  that  the  value  of  the  property 
so  purchased  does  not  exceed  the  value  of  the  property  so  sold  and  conveyed 
within  the  three  years  next  preceding  the  application. 
Am'd  by  chap.  228  of  1906.    In  effect  April  12,  1906. 

Pormer  •action  10  amended, 
§    14.    Acquisition    of   property    without    the    state. — Any    domestic 

corporation    t'  l.ii.-inc--    in    >  tea    or    foreign    countries    may 

acquire  and  dispo-c  of  such  property  as  sh;ill  he  requisite  for  such  corpora- 
tion in  the  convenient  transaction  -ine*s.  Any  domestic-  corporation 
establishing  or  maintaining  a  charit  :iliic.  philanthropic  or  educational  insti- 
tution within  tin-  -tate  may  a  No  can\  on  its  work  and  establish  or  maintain 
one  or  more  branches  of  such  institution  or  .:n  additional  institution  or  addi- 
tonal  institution.-  in  any  other  -late,  the  Di.-t.rict  of  Columbia  or  in  any  of 
the  terrii  -i-'pendcneies  of  the  United  States  of  America  or  in  any 
foreign  country  and  for  either  of  .said  purposes  may  take  by  devise  or  bequeat^ 
hold,  pureha-.  .  1  and  convey  or  otherwise  dispose  of  sucu  real 
and  per-onul  property  \\ithout  this  state  as  may  be  requisite  therefor.  But 
nothing  in  thi-  -Action  contained  shall  lie  construed  as  exempting  from  : 
tion  y  additional  amount,  than  is  no\v  allowed  to  siu-h  cor;. 

12 


GENERAL  CORPOIIATION  LAW. 

Former  section   11   amended. 

See  section  1,  chap.  146,  of  1872,  and  section  1,  chap.  361.  of  1882,  now 
repealed. 

Am'd  by  ch.   178  of  1903.     In  effect  April  14,  1903. 

If  such  other  state  does  not  permit  the  corporation  to  acquire  or  hold 
r«al  property,  it  can  nut  be  inferred,  but  must  b«  expressed  in  some  affirma- 
tive way.  Cowell  v.  Springs  Co.,  100  U.  S.  55. 

§  15.  Certificate  of  authority  of  a  foreign  corporation. — No  foreign 
stock  corporation  otner  than  a  monied  corporation,  shall  do  business  in  this 
state  without  having  first  procured  from  the  Secretary  of  State  a  certificate 
that  it  has  complied  with  all  the  requirements  of  law  to  authorize  it  to  do 
business  in  this  state,  and  that  the  business  of  the  corporation  to  be  carried  on 
in  this  state  is  such  as  may  be  lawfully  carried  on  by  a  corporation  incor- 
porated under  the  laws  of  this  state  for  such  or  similar  business,  or,  if  more 
than  one  kind  of  business,  by  two  or  more  corporations  so  incorporated  for  such 
kinds  of  business  respectively.  The  Secretary  of  State  shall  deliver  such  cer- 
tificate to  every  such  corporation  so  complying  with  the  requirements  of  law. 
No  such  corporation  now  doing  business  in  this  state  shall  do  business  herein 
after  December  thirty-first,  eighteen  hundred  and  ninety-two,  without  having 
procured  such  certificate  from  the  Secretary  of  State,  but  any  lawful  contract 
previously  made  by  the  corporation  may  be  performed  and  enforced  within  the 
state  subsequent  to  such  date. 

No  foreign  stock  corporation  doing  business  in  this'state  shall  maintain  any 
action  in  this  state  upon  any  contract  made  by  it  in  this  state  unless  prior  to 
the  making  of  such  contract  it  shall  have  procured  such  certificate.  This  pro-' 
hlbition  shall  also  apply  to  any  assignee  of  such  foreign  stock  corporation  and 
to  any  person  claiming  under  such  assignee  or  such  foreign  stock  corporation 
or  under  either  of  them.  No  certificate  of  authority  shall  be  granted  to  any 
foreign  corporation  having  the  same  name  as  an  existing  domestic  corporation, 
or  a  name  so  nearly  resembling  it  as  to  be  calculated  to  deceive,  nor  to  any 
foreign  corporation,  other  than  a  moneyed  or  insurance  corporation,  with  the 
word  "trust,"  "bank,"  "banking,"  "insurance,"  "assurance,"  "indem- 
nity," "guarantee,"  "guaranty,"  "savings,"  "investment,"  "loan,"  or 
"benefit,"  as  a  part  of  its  name. 

Amended  by  ch-.  538  of  1901.     In  effect  September  1,  1901.     This  section 
was  also  amended  by  ch.  96  of  1901. 
Amended  by  ch.  490  of  1904. 

Corporation  may  sue  on  a  contract  made  in  1900  though  its  certificate  was 
not  obtained  until  1902.  Lewis  Vub.  Co.  v.  Lenz.,  86  App.  Div.,  451. 

See  Onderdonk  v.  Peale  &  Co.,  104  App.  Div.  195. 

So.  Amboy  &  Co.  v.  Poerschke,  45  Misc.  353. 

"  Doing  business  in  this  state "  means  the  continuous  transaction  of  busi- 
Mes. 

Penn.  Collieries  Co.  v,  McKeever,  183  N.  Y.  98,  aff'g  93  App.  Dir.  303. 

§  16.  Proof  to  be  filed  before  granting  certificate. — Before  granting  such 
certificate  the  secretary  of  state  shall  require  every  such  foreign  corporation  to 
file  In  his  office  a  sworn  copy  in  the  English  {language  of  its  charter  or  certifi- 
cate of  incorporation,  and  a  statement  under  its  corporate  seal  particularly  set- 
•ting  forth  the  business  or  objects  of  the  corporation  which  it  is  engaged  in  carry- 
ing on  or  which  it  proposes  to  carry  on  within  the  State  and  a  place  within  the 
State  which  is  to  be  its  principal  place  of  business,  and  designating  in  the  manner 
prescribed  in  the  code  of  civil  procedure  a  person  upon  whom  process  against 
the  corporation  may  be  served  within  the  State.  The  person  so  designated  must 
have  an  office  or  place  of  business  at  the  place  where  such  corporation  is  to  have 
its  principal  place  of  business  within  the  State.  Such  designation  shall  continue 
in  force  until  revoked  by  an  instrument  in  writing  designating  in  like  manner 
some  other  person  on  whom  process  against  the  corporation  may  be  served  in  this 
State.  If  the  person  so  designated  dies  or  removes  from  the  place  where  the 
corporation  has  its  principal  place  of  business  within  the  State,  and  the  cor- 
poration does  not  within  thirty  days  after  such  death  or  removal  designate 
in  like  manner  another  person  upon  whom  process  against  it  may  be  served 

13 


GENERAL  CORPORATION"  LAW. 

within  the  State,  the  secretary  of  state  may  revoke  the  authority  of 
the  corporation  to  do  business  within  the  State,  and  process  against 
the  corporation  in  an  action  upon  any  liability  incurred  within  thig 
State  before  such  revocation,  may,  after  such  death  or  removal,  and 
before  another  designation  is  made,  be  served  upon  the  secretary  of 
state.  At  the  time  of  such  service  the  plaintiff  shall  pay  to  the  secre- 
tary of  state  two  dollars,  to  be  included  in  his  taxable  coats  and  dis- 
bursements, and  the  secretary  of  state  shall  forthwith  mail  a  copy  of 
gnch  notice  to  such  corporation  if  its  address,  or  the  address  of  any 
officer  thereof,  is  knowu  to  him. 

Amended  by  cii.  r,7u  ,  i   l>$tr>.     Took  effect  May  14,  1895. 
•See  International  So.-,   r.  Dennis,  76  App.  Div.,  327. 

§  17.  Acquisition  of  real  property  in  this  state  by  certain 
foreign  corporations. — Any  foreign  corporation  created  under  the 
laws  of  the  United  States,  or  of  any  state  or  territory  thereof,  and 
doing  business  in  this  state,  may  acquire  such  real  property  in  thia 
state  as  may  be  necessary  for  its  corporate  purposes  in  the  transaction 
of  its  business  in  this  state,  and  convey  the  same  by  deed  or  other- 
wise in  the  same  manner  as  a  domestic  corporation. 

Former  section  12  amended. 

See  section  1,  chap.  460  of  1887,  now  repealed. 

The  policy  of  a  state  may  exclude  foreign  corporations  from  acting  within  itit 
jurisdiction,  and  such  policy  may  be  clearly  established  by  a  reference  to  its 
general  legislation.  Demarest  v.  Flack,  128  N.  Y.,  205.  It  is  not  necessary  for  a 
state  to  do  so  expressly  by  statute.  Id.  But  no  such  policy  is  found  in  the  laws 
of  our  state.  Id.  A  corporation,  formed  in  another  state,  by  citizens  of  this 
state  for  the  purpose  of  transacting  business  here,  is  not  excluded  from  recognition 
by  the  courts  of  this  state,  unless  it  is  formed  to  do  acts  prohibited  by  the  laws  of 
the  state  to  its  own  citizens  or  corporations.  Id.  If  it  is  legally  incorporated  and 
entitled  to  recognition  in  the  courts  of  the  state  where  it  was  organized,  it  is 
entitled  to  recognition  and  protection  in  the  tribunals  of  this  state.  Id.  Th« 
power  rests  exclusively  with  the  legislature  to  say  whether  any,  and,  if  BO,  what 
terms  shall  be  imposed  upon  such  a  corporation  as  a  condition  of  its  doing  business 
here.  Id.  The  absence  of  such  terms  furnishes  no  ground  for  refusing  to 
recognize  it.  Id. 

Court  has  no  jurisdiction  to  interfere  with  internal  administration  of  affairs  of 
foreign  corporations.  Berford  v.  New  York  I.  Mine,  56  Supr.,236. 

•ion  1780  of    Code  does  not  violate  section  2,  art.  4,  of  Federal  Constitution. 
Robinson  v.  Ocean  S.  N.  Co.,  20  N.  Y.  St.  Rep.,  741. 

§  18.  Acquisition  by  foreign  corporation  of  real  property  in 
this  state. —  Any  foreign  corporation  may  purchase  at  a  sale  upon 
the  foreclosure  of  any  mortgage  held  by  it,  or,  upon  any  judgment 
or  decree  for  debts  due  it,  or,  upon  any  settlement  to  secure  such 
debts,  any  real  property  within  this  state  covered  by  or  subject  to 
such  mortgage,  judgment,  decree  or  settlement,  ana  may  take  by 
devise  any  real  property  situated  within  thia  state  and  hold  the  same 
for  not  exceeding  five  years  from  the  date  of  such  purchase,  or  from 
the  time  when  the  right  to  the  possession  thereof  vests  in  such  devi- 
see, and  convey  it  by  deed  or  otherwise  in  the  same  manner  as  a 
domestic  corporation. 

Am'd  by  chap.  186  of  1804.     Took  effect  March  15,  1804. 

14 


GENERAL  CORPORATION  LAW. 

§  19.  Prohibition  of  banking  powers. — No  corporation  except  a 
corporation  formed  under  or  subject  to  the  banking  laws,  shall  by  any 
implication  or  construction  be  deemed  to  possess  the  power  of  carrying 
on  the  business  of  discounting  bills,  notes  or  other  evidences  of  debt, 
of  receiving  deposits,  or  buying  and  selling  bills  of  exchange,  or  shall 
issue  bills,  notes  or  other  evidences  of  debt  for  circulation  as  money. 

Former  section  14. 

See  section  4,  title  3,  ch.  18,  part  1,  R.  S.  now  repealed. 

Amended  by  ch.  236  of  1904.     In  effect  April  5,  1904. 

It  is  the  settled  policy  of  the  legislature  to  prevent  corporations,  which  are  no* 
formed  for  banking1  business,  from  carrying  on,  or  in  any  manner  interfering'  with 
the  same.  N.  Y.  State  L.  &  T  Co.  v.  Helmer,  77  N.  Y.,  64.  The  courta  are 
bound  to  carry  out  the  law  and  to  see  that  it  is  not  violated.  Id  ;  Utica  Ins.  Co.  «. 
Scott,  19  Johns.,  1;  People  v.  Utica  Ins.  Co.,  15  id.,  358;  N.  Y.  Firemen  Ins.  Co.  t>. 
Ely,  2  Cow.,  678;  N.  Y.  L.  Ins.  Co.  v.  Beebe.  7  N.  Y.,  364 ;  Talmadge  v.  Pell,  id., 
328  ;  Utica  Ins.  Co.  v.  Kip,  8  C»w.,  20;  Oneida  Bk.  •».  Ontario  Bk.,  21  N.  Y.,  490. 

Certificates  of  deposit  irredeemable  within  twenty  years  and  bearing  interest, 
issued  as  loans  by  the  New  York  Life  Insurance  and  Trust  Company,  were  held  to 
be  violations  of  the  former  statute  upon  this  subject.  N.  Y.  Life  Ins.  &  T.  Co.  v. 
Beebe,  7  N.  Y.,  364. 

The  prohibition  of  this  section  extends  to  foreign  corporations.  Amer.  L.  Ins.  & 
T.  Co.  v.  Dobbin,  Hill  and  Denio,  252.  But  such  corporation  is  not  prohibited 
by  it,  from  purchasing  promissory  notes.  Id. 

The  penalty  or  forfeiture  declared  in  the  statute,  and  no  other,  will  be  enforced. 
Pratt  v.  Short,  79  N.  Y.,  437.  It  was  not  intended  that  all  claims  to  money  loaned 
or  advanced  upon  the  prohibited  security  should  be  forfeited.  Id;  Davis  8.  M. 
Co.  v.  Best,  30  Hun,  638;  Rome  Savings  Bk.  v.  Krug,  102  N.  Y.,  331 ;  N.  Y.  St. 
L.  &  T.  Co.  v.  Helmer,  77  id.,  64  ;  Rome  Sav.  Bk.  v.  Kramer,  32  Hun,  270 ;  Pratt 
t>.  Eaton,  79  N.  Y.f  449. 

The  history  of  the  restraining  acts  is  given,  and  the  authorities  on  the  subject 
collated,  in  Pratt  v.  Short,  79  N.  Y.,  437.  See  Utica  Ins.  Co.  v.  Caldwell,  3  Wend., 
296  ;  Same  v.  Bloodgood,  4  id.,  652;  Mercein  v.  People,  25  id.,  64;  Tracy  tj.  Tal- 
mage,  14  N.  Y.,  189  ;  Curtis  v.  Leavitt,  15  id.,  97;  Atlantic  State  Bk.  v.  Savery, 
82  N.  Y.,  291.  See  further,  Crocker  v.  "Whitney,  71  N.  Y.,  161. 

§  20.  Qualification  of  members  as  -voters. — Unless  otherwise  provided 
in  the  certificate  of  incorporation,  every  stockholder  of  record  of  a  stock  corpora- 
tion shall  be  entitled  at  every  meeting  of  the  corporation  to  one  vote  for  every 
share  of  stock  standing  in  his  name  on  the  books  of  the  corporation  ;  and  at  every 
meeting  of  a  non-stock  corporation,  every  member,  unless  disqualified  by  the 
by-laws,  shall  be  entitled  to  one  vote.  The  stockholders  of  a  stock  corporation, 
by  a  by-law  adopted  by  vote  at  any  annual  meeting,  or  at  any  special  meeting  duly 
called  for  such  purpose,  may  prescribe  a  period,  not  exceeding  forty  days  prior  to 
meetings  of  the  stockholders,  during  which  no  transfer  of  stock  on  the  books  of 
the  corporation  may  be  made.  Except  in  cases  of  express  trust,  or  in  which 
other  provision  shall  have  been  made  by  written  agreement  between  the  parties, 
the  record  holder  of  stock  which  shall  be  held  by  him  as  security,  or  which  shall 
actually  belong  to  another,  upon  demand  therefor  and  payment  of  necessary 
expenses  thereof,  shall  issue  to  such  pledger  or  to  such  actual  owner  of  such  stock, 
a  proxy  to  vote  thereon.  The  certificate  of  incorporation  of  any  stock  corpora- 
tion may  provide  that  at  all  elections  of  directors  of  such  corporation,  each  stock- 
holder shall  be  entitled  to  as  many  votes  as  shall  equal  the  number  of  his  shares  of 
stock  multiplied  by  the  number  of  directors  to  be  elected,  and  that  he  may  cast  all 
of  such  votes  for  a  single  director  or  may  distribute  them  among  the  number  to  be 
voted  for,  or  any  two  or  more  of  them  as  he  may  see  fit,  which  right,  when 
exercised,  ehall  be  termed  cumulative  voting.  The  stockholders  of  a  corporation 
heretofore  formed,  wlio  by  tiie  provisions  of  laws  existing  on  April  thirty,  eighteen 

15 


GENERAL  CORPORATION  LAW. 

hundred  and  ninety-one,  were  entitled  to  the  exercise  of  such  right,  may  hereafter 
exercise  such  right  according  to  the  provision  of  this  section.  A  stockholder 
may,  by  agreement  in  writing,  transfer  his  Btock  to  any  person  or  persona  for 
the  purpose  of  vesting  in  him  or  them  the  right  to  vote  thereon  for  a  time  not 
exceeding  five  years  upon  terms  and  conditions  stated  pursuant  to  which  such 
person  or  persons  shall  act ;  every  other  stockholder,  upon  his  request  therefor 
may,  by  a  like  agreement  in  writing  also  transfer  his  stock  to  the  same  person  or 
persons  and  thereupon  may  participate  in  the  terms,  conditions  and  privileges  of 
such  agreement ;  the  certificates  of  stock  so  transferred  shall  be  surrendered  and 
cancelled  and  certificates  therefor  issued  to  such  transferee  or  transferees  in  which 
it  shall  appear  that  they  are  issued  pursuant  to  such  agreement  and  in  the  entry 
of  such  transferee  or  transferees  as  owners  of  such  stock  in  the  proper  books  of 
said  corporation  that  fact  shall  also  be  noted  and  thereupon  he  or  they  may  vote 
upon  the  stock  so  transferred  during  the  time  in  such  agreement  specified ;  a 
duplicate  of  every  such  agreement  shall  be  filed  in  the  office  of  the  corporation 
where  its  principal  business  is  transacted  and  be  open  to  the  inspection  of  any 
stockholder,  daily,  during  business  hours.  No  member  of  a  corporation  shall 
sell  hi*  vote  or  issue  a  proxy  to  vote  to  any  person  for  any  sum  of  money  or  any 
thing  of  value.  The  books  and  papers  containing  the  record  of  membership  of 
the  corporation  shall  be  produced  at  any  meeting  of  its  members  upon  the  request 
of  any  member.  If  the  right  to  vote  at  any  such  meeting  shall  be  challenged, 
the  inspectors  of  election,  or  other  persons  presiding  thereat,  shall  require  such 
books,  if  they  can  be  had,  to  be  produced  as  evidence  of  the  right  of  the  person 
challenged  to  vote  at  such  meeting,  and  all  persons  who  may  appear  from  such 
books  to  be  members  of  the  corporation  may  vote  at  such  meeting  in  person  or 
by  proxy,  subject  to  the  provisions  of  this  chapter. 
Amended  by  ch,  855  of  1901.  In  effect  April  16,  1901." 

§  21.  Proxies. —  Every  member  of  a  corporation,  except  a  religiou* 
jorporation,  entitled  to  vote  at  any  meeting  thereof  may  BO  vote  b} 
proxy. 

No  officer,  clerk,  teller  or  bookkeeper  of  a  corporation  formed  undet 
or  subject  to  the  banking  law  shall  act  as  proxy  for  any  stockholder  at 
any  meeting  of  any  such  corporation. 

Every  proxy  must  be  executed  in  writing  by  the  member  himself, 
or  by  his  duly  authorized  attorney.  No  proxy  hereafter  made  shall  be 
valid  after  the  expiration  of  eleven  months  from  the  date  of  its  execu- 
tion unless  the  member  executing  it  shall  have  specified  therein  the 
length  of  time  it  is  to  continue  in  force,  which  shall  be  for  some  limited 
period.  Every  proxy  shall  N*  revocable  at  the  pleasure  of  the  person 
executing  it ;  but  a  corporation  having  no  capital  stock  may  prescribe 
in  its  by-laws  the  persons  who  may  act  as  proxies  for  members,  and 
the  length  of  time  for  which  proxies  may  be  executed. 

Part  of  section  54  of  stock  corporation  law  amended. 

§  22.  Challenges. —  Every  member  of  a  corporation  offermb  M 
vote  at  any  election  or  meeting  of  the  corporation  shall,  if  required  by 
an  inspector  of  election  or  other  officer  presiding  at  such  election  or 
meeting,  or  by  any  other  member  prm-ut.  take  and  subscribe  the 
following  oat%:  "I  do  solemnly  sweur  thai  in  voting  at  this  election 
t  have  not,  either  diiecdy,  indirectly  01  impliedly.  received  any 

16 


GENERAL  CORPORATION  LAW. 

promise  or  any  sum  of  money  or  anything  of  value  to  influence  the 
giving  of  my  vote  or  votes  at  this  .meeting  or  as  a  consideration  there- 
for." Any  person  offering  to  vote  as  proxy  for  any  other  person 
shall  present  his  proxy  and,  if  so  required,  take  and  subscriba 
.the  following  oath  :  "  I  do  solemnly  swear  that  I  have  not,  either ' 
directly,  indirectly  or  impliedly,  given  any  promise  or  any  sum 
of  money  or  anything  of  value  to  induce  the  giving  of  a  proxy  to 
me  to  vote  at  this  election,  or  received  any  promise  or  any  sum  of 
money  or  anything  of  value  to  influence  the  giving  of  my  vote  at 
this  meeting,  or  as  a  consideration  therefor."  The  inspectors  or  per- 
sons presiding  at  the  election  may  administer  such  oath,  and  all  such 
oaths  and  proxies  shall  be  filed  in  the  office  of  the  corporation. 

Amended  by  ch.  355  of  1901.     In  effect  April  16,  1901. 


§  23.  Effect  of  failure  to  elect  directors.— If  the  directors  shall 
not  be  elected  on  the  day  designated  in  the  by-laws,  or  by-law,  the 
corporation  shall  riot  for  that  reason  be  dissolved ;  but  every  director 
shall  continue  to  hold  his  office  and  discharge  his  duties  until  his  suc- 
cessor has  been  elected. 

Former  section  18. 

See  section  27,  chap.  611  of  1875,  now  repealed. 

A  corporation  is  not  dissolved  because  of  the  failure  to  eleut  trustees,  where  it  ia 
declared  that  such  omission  shall  not  produce  ite  devolution.  People  v.  Twaddell, 
18  Hun,  427. 

The  failure  of  a  board  of  trustees  to  adopt  by-laws  prescribing  the  time,  place 
and  manner  for  the  annual  election  of  trustees,  or  to  hold  such  election,  do«s  not 
dissolve  the  corporation.  Matter  of  Vandenburgh  v.  Broadway  Ry.  Co.,  29  Hun, 
348. 

This  section  expressly  provides  for  such  omission. 

On  the  dissolution  of  a  corporation,  the  title  to  real  estate  held  by  it  reverU 
back  to  its  original  grantor  and  his  heirs,  unless  there  is  some  provision  in  the 
charter,  or  some  other  statutory  provision,  to  avert  that  consequence.  Binghara 
v.  Weiderwax,  1  N.  Y.,  509. 

Webster  v.  Turner,  12  Hun,  264;  Brooklyn  8.  T.  Co.  v.  City  of  Brooklyn.  78  N. 
Y.,  524  ;  Kincaid  v.  Dwinelle,  59  id.,  548  ;  Central  Sav.  Inst.,  5  Hun,  34  ;  66  N.  Y., 
424;  Chamberlain  ».  Rochester  8.  P.  V.  Co.,  7  Hun,  557;  People  v.  Albany  &  V. 
R.  R.  Co.,  77  N.  Y.,  232 ;  rev'g,  15  Hun,  128 ;  Atty.-Gen.  v.  N.  A.  L.  Ins.  Co.,  77 

17 


GBICBRAL  CORPORATION  LAW. 

N.  Y.,  297;  rer'g,  IB  HUD,  18 ;  Er  Parte  French  Mfg.  Co.,  13  id.,  488;  Medbury 
9.  Rochester  P.  8.  Co.,  19  id.,  498 ;  KittredgetJ.  Kellogg  B.  Co.,  8  Abb.  N.  C.,  168 ; 
Denicke  «.  N.  Y.  &  R.  L.  &  C.  Co.,  80  N.  Y.,  599;  Belknap  v.  N.  A.  L.  Ins.  Co., 
11  Hun,  282  ;  Cole  v.  Knickerbocker  L.  Ins.  Co.,  23  id.,  255 ;  Frothingham  t>. 
Barney,  6  id.,  366 ;  Ex  Parte  W.  T.  Skirt  Co.,  8  id.,  608 ;  People  t>.  Nat.  Trust  Co., 
82  N.  Y.,  283;  Central  C.  R.  R.  Co.  t).  23d  St.  R.  R.  Co.,  54  How.,  168; 
Matter  of  N.  Y.  E.  R.  R.  Co.,  70  N.  Y.,  327 ;  People  t>.  Hektograph  Co.,  10  Abb. 
If.  C.,  358 ;  Ex  Part*  Pyrolusite  M.  Co.,  29  Hun,  429. 

§24.  Mode  of  calling  special  election  of  directors.— If  the 
•lection  has  not  been  held  on  the  day  so  designated,  the  directors  shall 
forthwith  call  a  meeting  of  the  members  of  the  corporation  for  the  puri 
pose  of  electing  directors,  of  which  meeting  notice  shall  be  given  in 
the  same  manner  as  of  the  annual  meeting  for  the  election  of  directors. 

If  such  meeting  shall  not  be  so  called  within  one  month,  or,  if  held, 
•hall  result  in  a  failure  to  elect  directors,  any  member  of  the  corpora- 
tion may  call  a  meeting  for  the  purpose  of  electing  directors  by  pub- 
liihing  a  notice  of  the  time  and  place  of  holding  such  meeting  at  least 
once  in  each  week  for  two  successive  weeks  immediately  preceding  the 
election,  in  a  newspaper  published  in  the  county  where  the  election  is 
to  be  held  and  in  such  other  manner  as  may  be  prescribed  in  the  by- 
laws for  the  publication  of  notice  of  the  annual  meeting,  and  by  serv^ 
ing  upon  each  member,  either  personally  or  by  mail,  directed  to  him 
at  his  last  known  post-office  address,  a  copy  of  such  notice  at  least  two 
weeks  before  the  meeting. 

Transferred  from  stock  corporation  law,  sections  53,  54  and  55. 

§  25.  Mode  of  conducting  special  elections  of  directors. — 
Such  meeting  shall  be  held  at  the  office  of  the  corporation,  or  if  it  has 
none,  at  the  place  in  this  state  where  its  principal  business  has  been 
transacted,  or  if  access  to  such  office  or  place  is  denied  or  can  not.  1  o 
had,  at  some  other  place  in  the  city,  village  or  town  where  such  office 
or  place  is  or  was  located. 

At  such  meeting  the  members  attending  shall  constitute  a  quorum. 
They  may  elect  inspectors  of  election  and  directors  and  adopt  by-laws 
providing  for  future  annual  meetings  and  election  of  directors,  if  the 
corporation  has  no  such  by-hi\vs,  and  transact  any  other  business 
which  may  be  transacted  at  an  annual  meeting  of  the  members  of  the 
corporation. 

Id. 

§  26.  Qualification  of  voters  and  canvass  of  votes  at  special 
•lections, —  In  the  absence  at  such  meeting  of  the  books  of  the  cor- 
poration showing  who  are  members  thereof,  each  person,  before  voting, 
•hall  present  his  sworn  statement  setting  forth  that  he  is  a  member  of 
the  corporation ;  and  if  a  stock  corporation,  the  number  of  shares  of 
•took  owned  by  him  and  standing  in  his  name  on  the  books  of  the  cor- 
poration, and,  if  known  to  him,  the  whole  number  of  shares  of  stock  of 

18 


CORPORATION  LA.W. 

the  corporation  outstanding.  On  filing  such  statement,  he  may  vote  M 
a  member  of  the  corporation  ;  and  if  a  stock  corporation,  he  may  vote 
on  the  shares  of  stock  appearing  in  such  statement  to  be  owned  by  him 
and  standing  in  his  name  on  the  books  of  the  corporation. 

The  inspectors  shall  return  and  file  such  statements,  with  a  certificate 
of  the  result  of  the  election,  verified  by  them,  in  the  office  of  the  clerk 
of  the  county  in  which  such  election  is  held,  and  the  persons  so  elected 
shall  be  the  directors  of  the  corporation. 

Id. 

§  27.  Powers  of  supreme  court  respecting  elections. —  The  su- 
preme court  shall,  upon  the  application  of  any  person  or  corporation 
aggrieved  by  or  complaining  of  any  election  of  any  corporation,  or  any 
proceeding,  act  or  matter  touching  the  same,  upon  notice  thereof  to  the 
adverse  party,  or  to  those  to  be  affected  thereby,  forthwith  and  in  a 
summary  way,  hear  the  affidavits,  proofs  and  allegations  of  the  parties, 
or  otherwise  inquire  into  the  matters  or  causes  of  complaint,  and  estab- 
lish the  election  or  order  a  new  election,  or  make  such  order  and  gire 
such  relief  as  right  and  justice  may  require. 

Former  section  16. 

See  section  5,  title  4,  chap.  18,  part  1,  R.  8..  now  repealed. 

No  one  but  a  party  named  as  aggrieved  in  the  notice  of  application  to  Bet  asida 
the  election,  is  entitled  to  be  heard.  Matter  of  Mohawk  &  H.  R.  R.  Co.,  19  Wend., 
135. 

A  corporation  has  the  right,  under  this  section,  to  make  application  to  tb» 
supreme  court,  for  the  purpose  of  establishing  an  election  of  its  trustees,  who  hare 
been  declared  elected,  or  to  have  the  election  set  aside  and  a  new  election  ordered. 
Matter  of  Pioneer  Paper  Co.,  36  How..  111. 

On  such  application,  notice  to  the  persons  who  claim  to  have  been  elected,  and  to 
the  corporation,  if  not  made  by  it,  is  sufficient.  Schoharie  Valley  R.  R.  Co.,  II 
Abb.,  N.  8.,  394.  It  is  not  necessary  that  all  the  stockholders  have  notice  of  th« 
application.  Id. 

This  section  does  not  authorize  any  person  whomsoever,  who  chooses  to  make  * 
complaint,  to  institute  the  proceeding.  Matter  of  Application  of  Syracuse,  C.  &N. 
T.  R.  R.  Co.,  91  N.  Y.,  1.  But  it  must  be  some  person,  whose  rights  have  been  in- 
fringed, and  who  is  justly  entitled  to  complain.  Id. 

Where  an  application  is  made,  under  this  section,  to  settle  contests  arising  out  of 
R.  disputed  election,  the  court  may  go  behind  the  entries  in  the  transfer  book  of  th* 
company,  and  determine  whether  a  transfer  appearing  thereon  was  a  sale  or  only  a 
pledge  of  th«  shares,  and  whether  the  pledger  or  pledgee  waa  entitled  to  vote 
thereon.  Matter  of'Btrong  v.  Smith,  15  Hun,  222. 

The  continuous  neglect  of  corporation,  for  a  number  of  years,  to  hold  any  elec- 
tion of  officers,  affords  a  proper  case  for  the  issue  of  a  mandamus  on  the  relation  of 
a  corporator,  without  proof  of  a  special  request  to  the  directors  to  hold  an  election. 
People  ex  rel.  Walker  t>.  Albany  Hospital,  11  Abb.,  N.  8.,  4. 

A  mandamus  will  lie  to  compel  an  election  of  the  officers  of  a  corporation,  other 
than  municipal,  if  a  proper  case  is  made.  People  ex  rel.  Walker  v.  Albany  Ho»- 
pital,  11  Abb.,  N.  8.,  4. 

§  28.  Stay  of  proceedings  in  actions  coUusively  brought. — If 

an  action  is  brought  against  a  corporation  by  the  procurement  or  default 
of  its  directors,  or  any  of  them,  to  enforce  any  claim  or  obligation  de- 
clared void  by  law,  or  to  which  the  corporation  has  a  valid  defense, 

IP 


QBWBRAL  CORPORATION  LAW. 

and  Buch  action  is  in  the  interest  or  for  the  benefit  of  any  director,  and 
the  corporation  has  by  his  connivance  made  default  in  such  action,  or 
consented  to  the  validity  of  such  claim  or  obligation,  any  member  of 
the  corporation  may  apply  to  the  supreme  court,  upon  affidavit,  set- 
ting forth  the  facts,  for  a  stay  of  proceedings  in  such  action,  and  on 
proof  of  the  facts  in  such  further  manner  and  upon  such  notice  as  the 
court  may  direct,  it  may  stay  such  proceedings  or  set  aside  and  vacate 
the  same,  or  grant  such  other  relief  as  may  seem  proper,  and  •which 
will  not  injuriously  affect  an  innocent  party,  who,  without  notice  of 
auch  wrongdoing  and  for  a  valuable  consideration,  has  acquired 
rights  under  such  proceedings. 

Former  section  1C  amended. 

See  section  4,  chap.  151  of  1870,  now  repealed. 

Stockholders  may  assert  and  maintain  rights  of  company,  when  it  is  in  no  position 
to  assert  its  rights,  and  Buch  rights  are  suffered  to  remain  unenforced.  Barr  «.  N. 
T.  L.  E.  &  W.  R.  R.  Co.,  126  N.  Y.,  263. 

When  one  trustee  may  bring  suit  for  accounting  on  behalf  of  the  corporation 
Eecamier  Mfg.  Co.  v.  Seymour,  15  Daly,  245. 

Action  may  be  maintained,  where  proper  case  shall  be  disclosed,  by  stockholders, 
or  others  interested  in  property  of  corporation,  to  vindicate  and  sustain  righto  of 
Company  alone,  against  alleged  misconduct  of  its  directors.  Rogers  v.  Phelps,  81 
K.  Y.  St.  Rep.,  872. 

But  such  action  can  not  be  maintained,  where  there  is  no  diversion  authorized, 
which  will,  in  any  manner,  diminish  or  impair  rights  or  interests  of  stockholder* 
themselves  in  assets  or  property  of  company.  Id. 

Action  against  corporation  to  influence  corporate  action,  can  not  be  main- 
tained. Thomas  t>.  M.  M.  P.  Union,  121  N.  Y.,  45. 

Equity  interferes  only  in  case  of  irreparable  injury  or  inadequate  remedy  at 
law.  Id. 

Action  will  not  lie  to  declare  certain  by-laws  void,  and  prevent  enforcement.     Id. 

Stockholder's  action  lies  without  previous  application  to  officers  to  sue,  where 
object  is  relief  from  their  own  misconduct.  Mayers  v.  Scott,  20  N.  Y.  St.  Rep.,  86. 

So,  such  application  is  unnecessary,  where  action  is  to  protect  rights  of  indi- 
vidual shareholders  suing,  as  distinguished  from  those  of  corporation.  Id. 

Mere  creditor  of  stockholder  and  of  corporation  can  not  maintain  action  to  avoid 
transfer  by  company.  Berford  v.  New  York  I.  Mine,  56  Super.,  236. 

Complaint  held  to  state  facts  constituting  cause  of  action  against  directors  of 
corporation,  for  alienation  or  threatened  alienation  of  corporate  property.  Phoenix 
Nat  Bk.  v.  Clev.  Co.,  34  N.  Y.  St.  Rep.,  498. 

Complaint,  in  action  by  stockholders,  held  sufficient  to  entitle  them  to  equitable 
relief  against  fraudulent  conduct  of  officers  of  corporation.  Meyers  v.  Scott,  20  N. 
Y.  St.  Rep.,  35. 

When  action  by  creditor  and  shareholder  against  directors  for  misconduct,  injunc- 
tion nendente  lite,  proper.  Hoyt  v.  Malone,  31  N.  Y.  St.  Rep.,  789. 

Where  necessity  for  injunction  exists,  courts  of  this  state  may  enjoin  corpora- 
tion, formed  under  its  laws,  from  proceeding  in  action  pending  in  another  state. 
Gibson  v.  A.  L.  &  T.  Co.,  58  Hun,  443. 

Facts  held  sufficient  to  justify  continuing  injunction  to  restrain  collection  of 
Judgments  against  insolvent  companies.  Pierce  •».  Mayer,  36  N.  Y.  St.  Rep.,  829. 

Right  of  resident  stockholder,  to  maintain  action  for  injunction  against  foreign 
corporation.  lyes  t>.  Smith,  28  N.  Y.  St.  Rep.,  917. 

When  injunction  pmdente  lite  will  be  continued.     Id. 

Action  may  be  maintained  against  receiver  of  corporation,  for  tort  committed 
before  his  appointment.  Decker  t>.  Gardner,  83  N.  Y.  St.  Rep.,  641. 

Summons  cannot  be  served  upon  assistant  treasurer  of  domestic  corporation. 
Winslow  v.  Staten  I.  P.  T.  Co.,  61  Hun,  298. 

Person,  who  receives  and  handles  all  money  received  by  foreign  corporation  in 
ttua  state.  i»  cashier  within  meaninr  of  section  433  of  Code.  McCulloh  «.  P.  N. 
W.  Co.,  88  N.  T.  St.  Rep.,  406. 

20 


GENERAL  CORPORATION  LAW. 


R.  R.  Co.,  115  N.  Y.,  437. 

Service  of  summons  upon  general  superintendent  of  telephone  company  is  rood. 
Barrett  v.  Amer.  T.  &  T.  Co.,  56  Hun,  430. 

When  service  of  summons  on  director  of  corporation  sufficient.  McElroy  »• 
C.  R  Co.,  25  N.  Y.  St.  Rep.,  834. 

Person,  on  whom  service  is  made,  must  be  either  officer  or  managing  agent  of 
corporation.  Sturges  v.  C.  J.  Mfg.  Co.,  32  N.  Y.  St.  Rep.,  848 ;  aflPd  38  id.,  1028. 

Fact  that  he  resigned  on  purpose  to  avoid  does  not  prevent  service.     Id. 

Where  no  legal  resignation  of  directoi-s  of  business  corporation  has  been  made 
they  remain  such  officers  within  the  meaning  of  section  431  of  Code.  Carnaghan 
v.  E.  &  P.  0.  Co.,  32  N.  Y.  St.  Rep.,  1117. 

Section  9,  chap.  195  of  1846,  does  not  authorize  service  upon  director  of  de- 
fendant of  summons  of  kind  prescribed  by  Code.  Quade  v.  N.  Y.,  N.  H.  &  H.  R. 
R.  Co.,  39  N.  Y.  St.  Rep.,  157. 

Authority  of  cashier  or  other  officer  of  bank  terminates  at  end  of  its  corporate 
existence.  Hayden  v.  Bank  of  Syracuse,  36  N.  Y.  St.  Rep.,  899. 

After  such  event,  service  of  summons,  etc.,  upon  former  cashier  does  not  con- 
stitute service  upon  corporation.  Id. 

Defunct  bank  can  not  be  sued.     Id. 

Service  of  summons  on  former  director,  after  he  has  sold  his  stock  and  new  set 
of  directors  been  selected,  is  nullity.  Beardsley  v.  Johnson,  121  N.  Y.,  324. 

Service  of  summons  on  attorney  of  corporation,  whose  appointment  for  such 
purpose  never  became  operative  to  knowledge  of  plaintiff,  will  be  set  aside. 
Richardson  v.  W.  H.  Ins.  Co.,  29  N.  Y.  St.  Rep.,  820. 

Individual  name  of  superintendent  of  insurance  need  not  be  inserted  in  his 
appointment  as  attorney  under  chap.  346  of  1884.  Lafflin  v.  T.  Ins.  Co.,  81 
N.  Y.  St.  Rep.,  900 ;  revrg  30  id.,  1021. 

Phrase  "  or  his  successor  in  office  "  may  be  added  to  his  title.     Id. 

Appointment  need  not  be  authenticated  in  any  particular  manner,  or  so  as  to 
entitle  it  to  be  read  in  evidence.  Id. 

What  proof  necessary  to  support  action  by  tax  payer  to  restrain  supervisor  from 
paying  highway  commissioner's  bills.  Warrin  v.  Van  Nostrand,  21  N.  Y.  St. 
Rep.,  960. 

Tax  payer's  action  will  be  dismissed  when  brought  actually  in  interest  of  pri- 
vate claimant  and  not  for  relief  of  tax  payers.  Kimball  v.  Hewitt,  15  Daly,  124. 

When  tax  payer's  suit  can  be  maintained  to  prevent  signing  of  contract  by  ma- 
nicipal  authorities.  Armstrong  v.  Grant,  56  Hun,  226. 

Action  by  tax  payer  to  restrain  city,  under  chap.  531  of  1881,  can  not  be  main- 
tained, where  bid  was  lowest  and  made  in  good  faith.  Boyle  v.  Grant,  36  N.  Y. 
St.  Rep.,  207. 

Untrue  statement  in  bid  not  made  with  intent  to  deceive  or  mislead  city  authori- 
ties, and  known  before  acceptance,  furnishes  no  ground  for  judicial  interference. 
Id. 

Action  by  tax  payer  to  restrain  action  of  common  council,  within  its  power  and 
discretion,  can  not  be  maintained,  without  charge  of  fraud,  collusion,  corruption  of 
bad  faith.  Talcott  v.  Buffalo,  125  N.  Y.,  280. 

That  officer  has  not  passed  civil  service  examination  is  not  ground  for  tax  payer's 
suit.  Peck  v.  Belknap,  55  Hun,  91. 

Appreciable  wronger  substantial  injury  must  be  shown.     Id. 

Lamp  superintendent  is  not  subordinate  officer,  etc.,  within  meaning  of  civil  ser- 
vice act.  Id. 

Zieglerv.  Hoagland,  52  Hun,.  385;  Butts  v.  Wood,  37  N.  Y.,317;  Ogden  v.  Mur- 
ray, 39  id.,  202  ;  Beveridge  v.  N.  Y.  E.  R.  R.  Co.,  112  id.,  1,  28  ;  Meyers  v.  Scott, 
20  N.  Y.  St.  Rep.,  35  ;  Stromeyer  v.  Combes,  18  id.,  154  ;  Allen  v.  Railroad  Co.,  49 
How.,  14  ;  Smith  v.  Rathbun,  66  Barb.,  402  ;  Dinsmore  «.  Railroad  Co.,  46  How., 
193  ;  Greaves  v.  Gonfee,  54  id.,  272  ;  Meyer  v.  Scott,  20  N.  Y.  St.  Rep.,  35  ;  Smith 
v.  Rathbun,  22  Hun,  150  ;  Brinckerhoff  v.  Bostwick,  88  N.  Y.  52  ;  Currier  v.  Bail- 
road  Co.,  35  Hun,  855;  Barr  v.  Same,  96  N.  Y.,  444. 

§  29.  Quorum  of   directors  and   powers    of  meyority.—  Th« 

affairs  of  every  corporation  shall  be  managed  by  its  board  of  directors, 

21 


GENERAL  CORPORATION  LAW. 

at  Teaet  one  of  whom  shall  be  a  resident  of  this  state.  Unless  other- 
provided  by  law  a  majority  of  the  board  of  directors  of  a  corpo- 
;i  at  a  meeting  duly  assembled  shall  be  necessary  to  constitrite 
a  quorum  for  the  transaction  of  business,  and  the  act  of  a  majority 
of  the  directors  present  at  a  meeting  at  which  a  quorum  is  present 
shall  be  the  act  of  the  board  of  directors.  The  members  of  a  corpo- 
ration may  in  by-laws  fix  the  number  of  directors  necessary  to  con- 
stitute a  quorum  at  a  number  less  than  a  majority  of  the  board,  but 
at  least  equal  to  one-third  of  its  number.  Subject  to  the  by-laws;  if 
any  adopted  by  the  members  of  a  corporation,  the  directors  may  make 
necessary  by-laws  of  the  corporation. 

Amended  by  eh.  214  of  1901.     In  effect  March  28,  1901. 
Amended  by  ch.  757  of  1904. 

Former  section  17  amended. 

See  section  6,  title  3,  chap.  IS,  part  1,  R.  8.;  and  section  10,  chap.  611  of  1876, 
now  repealed. 

Where  a  statute  authorizes  a  select  body  of  men  to  make  by-laws,  rules  and 
regulations,  a  majority  of  that  body  at  least  is  necessary  to  constitute  a  quorum. 
ET  parte  Wilcock,  7  Cow.,  402.  Words  in  such  a  statute,  directing  that  a  majority 
of  thoae  present  at  a  regular  meeting  shall  be  competent  to  do  business,  can  not 
l>e  construed  as  authorizing  a  minority  of  such  body  to  act.  Id. 

Where  a  member  of  a  board  of  directors  presents  to  such  board  a  bill  for  extra 
oompensation  as  secretary,  he  is  disqualified  from  acting  upon  the  auditing  of  such 
bill.  Butts  v.  Wood,  37  N.  Y.,  317.  And  if  he  must  be  included  to  constitute  a 
quorum,  the  board  so  constituted  is  not  qualified  to  act  upon  such  bill  so  as  to  bind, 
the  corporation.  Id. 

Shareholder  has  legal  right,  at  meeting,  to  vote  upon  measure,  even  though  he 
has  personal  interest  therein  separate  from  other  shareholders.  Gamble  v.  Queens 
Co.  W.  Co.,  123  N.  Y.,  91. 

What  conduct  of  majority  necessary  to  warrant  interference  of  court  in  favor  of 
minority.  Id. 

§  30.  Directors  as  trustees  in  case  of  dissolution. — Upon  the 
dissolution  of  any  corporation,  its  directors,  unless  other  persons  shaM 
be  appointed  by  the  legislature,  or  by  some  court  of  competent  juris- 
diction, shall  be  the  trustees  of  its  creditors,  stockholders  or  members, 
and  shall  have  full  power  to  settle  its  affairs,  collect  and  pay  outstand- 
ing debts,  and  divide  among  the  persons  entitled  thereto  the  money  and 
other  property  remaining  after  payment  of  debts  and  necessary  ex- 
penses. 

Such  trustees  shall  have  authority  to  sue  for  and  recover  the  debts 
and  property  of  the  corporation,  by  their  name  as  such  trustees,  and 
shall  jointly  and  severally  be  personally  liable  to  its  creditors,  stock- 
holders or  members,  to  the  extent  of  its  property  and  effects  that  shall 
oome  into  their  hands. 

Former  sections  19  and  20  consolidated. 

Bee  section  9,  title  3,  chap.  18,  part  1,  R.  8.,  now  repealed. 

See  section  10,  title  3,  chap.  18,  part  1,  R.  8.,  section  3,  chap.  67  of  1811,  and 
section  3,  chap.  40  of  1848,  now  repealed. 

The  provision  now  in  force,  declaring  that,  onth  e  dissolution  of  a  corporation, 
the  directors,  unless  some  other  person  shall  be  designated,  shall  be  trustees  of  ite 
<r«ditorB,  stockholders  or  members,  was  originally  copied  from  section  1,  1  R.  L.. 
348. 

This  section  does  not  in  terms  create  a  lien  of  any  kind  on  the  corporate  property. 

Tmkham  v.  Borst.  31  Barb.,  407.     It  recognizes  very  distinctly  the  right  of  credi- 

•ind  stockholders  to  the  a«s>-ts.  «.nd  •••.•i^titiiti-s  ih"  directors  the  trustees  to 

Uko  rharirH  of  them  for  the   i  i       Id.     Th<-    creditors    of   dissolved 

corpora!'!"  lien  on  the  aMeta  for  the  payment  of  their  debts.     Id.     Where 

22 


GENERAL  CORPORATION  LAW. 

a  fund  exists  in  this  state  which  our  own  citizens  are  entitled  to  have  applied  to  the 
payment  of  their  debts,  the  courts  will  detain  and  appropriate  the  fund,  but  will 
not  disregard  the  rights  of  other  parties.  Id. 

Upon  the  dissolution  of  a  corporation,  its  remaining  trustees  become  vested  with 
the  title  of  its  property,  and  responsible  to  its  creditors  and  stockholders  for  tae 
value  thereof.  Peoples.  O'Brien,  111  N.  Y.,  1 ;  Dash  v.  Van  Kleick,  7  Johns.,  477. 
The  trustees  succeed  to  all  the  rights  and  privileges  of  directors  and  to  the  same 
means  of  defense.  Kain  v.  Bloodgood,  7  Johns.  Ch.,  90,  128.  All  the  property  and 
rights  of  the  corporation  become  vested  in  the  directors  then  in  office,  unless  the 
repealing  act  provides  for  the  appointment  of  other  persona  than  its  officers  aa 
trustees.  McLaren  -».  Pennington,  1  Paige,  102. 

The  directors  or  managers,  upon  the  dissolution  of  a  corporation,  become  trustee* 
of  its  property,  unless  some  other  custodian  is  appointed,  for  the  purpose  of  pay- 
ing its  debts  and  dividing  its  property  among  its  stockholders.  Heath  v.  Barmore, 
50  N.  Y.,  305 ;  Towar  v.  Hale,  46  Barb.,  361. 

The  above  section  applies  as  well  to  the  real  estate  as  to  the  personal  property 
of  corporations.  Id.  The  legal  title  vests  in  the  body  corporate  during  its  life,  and, 
upon  its  dissolution,  in  the  trustees  in  office  at  the  time,  in  trust  for  the  creditors 
and  stockholders.  Central  City  Sav.  Bk.  v.  Walker,  66  N.  Y.,  428. 

There  is  nothing  in  this  section  to  restrict  its  provisions  to  personality.  Owen  vn 
Smith,  31  Barb.,  641.  The  equity  of  the  creditors  and  stockholders  is  the  same  in 
respect  to  all  species  of  pi-operty.  Id.  Upon  the  dissolution  of  a  corporation,  the 
title  to  real  property  held  by  it  does  not  revert  to  the  original  proprietors  and 
grantors,  or  their  heirs,  but  vests  in  the  receiver  of  the  corporation.  Id.  The 
property,  real  and  personal,  is  to  be  administered  by  him  for  the  benefit  of 
creditors  and  stockholders.  Id. 

Upon  the  dissolution  of  a  corporation,  at  common  law,  all  its  real  estate  unsold 
reverted  back*  to  the  original  grantor  or  his  heirs ;  the  debts  to  and  from  the  cor- 
poration were  extinguished,  and  all  the  personal  estate  of  the  corporation  vested 
in  the  people.  Huntley  v.  Beecher,  30  Barb.,  580.  But,  in  this  state,  these  conse- 
quences are  guarded  against  by  statute.  Id. 

The  rule  at  common  law  does  not  prevail  here.     Where  lands  are  conveyed  ab 
solutely   to  a  corporation  having  stockholders,  no   reversion   or  possibility  of  * 
reverter  remains  in  the  grantor.     Heath  v.  Barmore,  50  N.  Y.,  302. 

The  charter  of  a  dissolved  corporation  may  be  extended  by  a  legislative  act. 
Huntley  v.  Beecher,  30  Barb.,  580.  In  such  case,  it  retains  its  property,  and  re- 
mains liable  upon  its  obligations.  Id. 

The  provisions  of  this  section  apply  to  all  corporations  created  or  to  be  created. 
Towar  v.  Hale,  46  Barb.,  361.  They  preclude  the  idea  of  land  reverting  to  the 
original  grantor,  until  at  least  all  the  debts  owing  by  the  corporation  are  paid.  Id. 

This  section  expressly  limits  the  liability  of  the  directors  as  trustees,  upon  the 
dissolution  of  the  corporation,  to  the  extent  of  the  property  and  effects  that  shall 
come  into  their  hands.  Hoffman  v.  Van  Nostrand,  42  Barb.,  174.  They  are  not 
liable  for  the  value  of  stock  to  one  who  had  deposited  it  as  collateral  security  with 
the  corporation,  which  had  been  sold  by  it  previous  to  its  dissolution.  Id. 

Upon  the  dissolution  of  a  corporation,  the  directors  then  in  office  become  trus- 
tees to  settle  up  its  affairs,  and  suits  must  then  be  commenced  in  the  names  of  such 
trustees.  Lond.  I.  F.  Co.  v.  Terbell,  48  N.  Y.,  427. 

Where  the  charter  of  a  corporation  expires  by  its  own  limitation,  while  an  action 
for  a  tort  is  pending  against  it,  the  court  has  power  to  continue  the  action  against 
the  statutory  trustees  under  this  section.  Hepworth  v.  Union  Ferry  Co.,  62  Hun, 
257.  The  statute  creditor  embraces  those  persons  whose  claims  are  based  upon 
torts.  Id. 

It  is  a  general  principle  that  a  cause  of  forfeiture  cannot  be  taken  advantage  of, 
or  enforced,  against  a  corporation  collaterally,  or  incidentally,  or  in  any  other 
mode  than  by  a  direct  proceeding  for  that  purpose  against  the  corporation,  »o  that 
it  may  have  an  opportunity  to  answer.  Towar  v.  Hale,  46  Barb.,  361. 

Where  the  state  seeks  by  action  to  destroy  the  life  of  a  corporation,  it  must,  it 
seems,  show  some  gra\  9  misconduct,  on  the  part  of  the  latter,  which  has  produced,  or 
tends  to  produce,  injury  to  the  public.  People  v.  North  R.  S.  R.  Co.,  121  N.  Y., 
582.  When  such  transgression  affects  the  welfare  of  the  people,  they  mavby 
action  summon  the  offending  corporation  to  answer  for  the  abuse  of  its  franchise, 
and  ask  to  have  its  charter  forfeited,  and  itself  dissolved.  People  t>.  North  R. 
8.  R.  Co.,  131  N.  Y.,  582, 

23 


GENERAL  CORPORATION  LAW. 

Sufficient  order  to  show  cause,  under  section  2423  of  Code,  in  proceedings  fow 
voluntary  dissolution  of  corporation.  Matter  of  Christian  J.  Co.,  40  N.  Y.  St.  Rep., 
621. 

If  such  order  is  defective  for  not  complying  with  section  2424  of  Code,  it  do«« 
oot  render  appointment  of  receiver  nullity.  Id. 

It  must  be  taken  advantage  of  by  motion.     Id. 

It  can  be  amended  nunc  pro  tune.     Id. 

Court  may  pi-event  any  subsequent  interference  with  its  property  under  writ  of 
replevin  or  attachment.  Id. 

After  receiver  files  his  bond,  his  title  relates  back  to  date  of  appointment.     Id. 

Omission  in  petition  for  voluntary  dissolution,  which  does  not  show  lack  of  good 
faith  nor  fraudulent  purpose,  may  be  obviated  by  evidence.  Matter  of  Santa  E. 
8.  M.  Co.,  21  N.  Y.  St.  Rep.,  89. 

Order  to  show  cause,  in  voluntary  proceedings  for  dissolution  of  corporation, 
held,  in  this  case,  to  be  substantial  compliance  with  section  2423  of  Code.  Matter 
of  Christian  J.  Co.,  39  N.  Y.  St.  Rep.,  379. 

People  can  not  maintain  action,  under  sections  1781,  1782  of  Code,  to  redress 
strictly  private  wrong.  People  v.  Ballard,  56  Hun,  125. 

Causes  of  action  for  sequestration  of  property  of  corporation,  and  to  charge 
stockholders  with  individual  liability,  are  properly  united.  Woodard  v.  Holland 
M.  Co.,  39  N.  Y.  St.  Rep.,  411. 

Sufficiency  of  allegation  of  complaint  as  to  non-payment  of  capital  stock.     Id. 

One  creditor  may  bring  such  action.     Id. 

In  such  action  it  is  not  necessary  to  state  in  complaint  facts  upon  which  judgment 
against  corporation  was  obtained.  Id. 

Order  of  dissolution,  under  section  2429  of  Code,  should  be  granted,  whero  no 
benefit  can  result  by  continuing  its  existence.  Matter  of  I.  &  G.  Exchange,  16 
Daly,  413. 

When  receiver  may  be  appointed  to  enforce  judgment  against  corporation. 
King  71.  Barnes,  51  Hun,  550. 

Court  may,  under  certain  circumstances,  authorize  receiver  to  advance  money  to 
corporation,  taking  security  therefor,  to  enable  it  to  continue  its  business.  Kalb- 
fleisch  v.  Kalbfleisch,  37  N.  Y.  St.  Rep.,  183. 

Court  may  authorize  receiver  to  issue  certificates  and  borrow  money  thereon,  to 
pay  necessary  running  expenses  and  for  necessary  rolling  stock.  Central  T.  Co. 
v.  Tappen,  25  N.  Y.  St.  Rep.,  635. 

Facts  warranting  exercise  of  court's  discretion.     Id. 

Such  certificates  are  paramount  liens.     Id. 

Amount  paid,  under  order  subsequently  reversed,  can  be  recovered,  or  deducted, 
by  receiver  from  subsequent  dividend  due  claimant  in  excess  of  percentage  pay- 
able to  general  creditors.  People  v.  Remington  &  Sons  ;  Whitfiefd  v.  Russell,  60 
Hun,  42. 

Receiver  of  corporation  can  not  enforce  agreement  by  president  with  creditor  to 
mutually  postpone  enforcement  of  claims  against  it  for  indefinite  period.  Snow  v. 
R.  C.  F.  Co.,  58  Hun,  134. 

All  directors,  shareholders  and  creditors  in  corporation,  have  right  to  transfer  to 
themselves  patent  rights  held  by  corporation  and  substitute  their  notes  therefor. 
Skinner  v.  Smith,  56  Hun,  437. 

The-  business  of  ordinary  trading  or  manufacturing  corporation  may  be  wound 
up  whenever  majority  of  ita  stockholders  deem  it  expedient.  Id. 

Receiver  of  corporation  will  not  be  compelled  to  account,  where  it  appears  that 
no  property  of  corporation  has  come  into  his  hands.  Lyons  v.  A.  H.  Q.  M.  At  M. 
Co.,  38  N.  Y.  St.  Rep.,  892. 

Application  by  receiver  of  dissolved  corporation  for  warrant  of  arrest  must  b« 
made  on  notice  to  Attorney-General.  Matter  of  Vanamee,  29  N.  Y.  St.  Rep.,  198. 

What  proof  must  be  made  for  such  purpose.     Id. 

Receiver  of  insolvent  corporation,  legally  appointed,  may  institute  proceeding* 
lo  examine  officer  as  to  concealed  assets.  Matter  of  Stonebridge,  37  N.  Y.  St. 
Rep.,  617. 

Statement  of  what  facts  in  affidavit  sufficient  to  sustain  warrant.     Id. 

Denial  or  explanation  in  no  reason  for  its  refusal.     Id. 

Warrant  against  one  having  property  of  corporation  must  be  applied  for  on  notice 
to  Attorney-General.  Matter  of  Stonebridge  (Sup.  Ct.  1890),  32,  1070  ;  57  Hnn, 


24 


GBNERAL  CORPORATION  LAW. 

Such  party  is  not  bound  to  account  until  first  publication  of  notice  of  appoint- 
ment of  receiver.  Id. 

What  notice  insufficient  in  such  case.     Id. 

Injunction  against  creditors  of  dissolved  corporation  will  not  be  so  modified,  after 
appointment  of  receiver,  as  to  permit  entry  of  judgment  in  prior  action  and  isaua 
of  execution,  before  substitution  of  receiver  as  party  defendant.  Matter  of  Vertical 
T.  B.  Co.,  38  N.  Y.  St.  Rep.,  528. 

Order  for  stay  of  all  proceedings,  on  appeal  from  order  annuling  charter,  will  be 
denied,  where  order  has  been  granted  directing  receiver  to  make  no  sale  or  dis- 
tribution of  property  until  further  order  of  court.  People  v.  N.  R.  8.  R.  Co.,  25 
N.  Y.  St.  Rep.,  569. 

Stock  can  not  be  transferred  so  as  to  pass  a  legal  title  after  the  dissolution  of 
the  corporation.  James  7).  Woodruff,  2  Denio,  574.  In  such  case,  the  interests  of 
the  several  stockholders  become  equitable  rights  to  a  proportionate  share  of  the 
assets  after  payment  of  the  debts.  Id. 

A  stockholder  who  is  indebted  to  the  company  at  the  time  of  its  dissolution,  is 
only  entitled  to  his  share  of  the  effects  after  deducting  the  amount  which  he  may 
owe.  James  v.  Woodruff,  2  Denio,  574. 

An  assignee  of  a  stockholder  in  a  dissolved  corporation  takes  the  interest  of  the 
assignor,  subject  to  all  claims  which  the  corporation  has  against  him.  James  v. 
Woodruff,  2  Denio,  574. 

Where  the  debtor  of  a  dissolved  corporation  becomes  a  purchaser  of  its  stock, 
his  debt  will  be  deducted  from  his  share  of  the  assets.  James  v.  Woodruff,  2 
Denio,  574.  His  assignee  or  vendee  takes  it  subject  to  a  like  deduction.  Id. 

The  appointment  of  a  receiver  after  the  commencement  of  an  action  to  recover 
the  unpaid  balance  of  the  subscription  to  the  capital  stock  does  not  cause  the  suit 
to  abate,  but  it  may  be  continued  by  the  receiver  in  the  name  of  the  original 
party.  Phoenix  W.  Co.  v.  Badger,  6  Hun,  293 ;  Albany,  etc.,  Co.  «.  Van  Vran- 
ken,  42  How.,  281 ;  Tracy  v.  First  Nat.  Bk.,  37  N.  Y.,  523. 

When  discharge  divests  receiver  of  cause  of  action,  such  will  lie  in 
directors. 

Michel  v.  Betz,  108  App.  Div.  342. 

§  31.  Forfeiture  for  non-user. — If  any  corporation,  except  a  rail- 
road, turnpike,  plank-road  or  bridge  corporation,  shall  not  organize 
and  commence  the  transaction  of  its  business  or  undertake  the  dis- 
charge of  its  corporate  duties  within  two  years  from  the  date  of  its 
incorporation,  its  corporate  powers  shall  cease. 

Former  section  21. 

See  section  7,  title  3,  chap.  18,  part  1,  R.  8.,  and  section  8,  chap.  611  of  1875, 
now  repealed. 

Action  to  dissolve  corporation  may  be  maintained,  when  it  has  suspended  its  or- 
dinary and  lawful  business  for  at  least  one  year.  People  t>.  Seneca,  L.  Q.  and  W. 
Co.,  52  Hun,  174. 

Government,  creating  corporation,  can  alone,  as  general  rule,  enforce  cause  of 
forfeiture.  Id. 

Proceedings  to  dissolve  by  directors  is  no  bar  to  action  by  people  to  dissolve  be- 
cause of  forfeiture  of.  charter.  Id. 

Notice  of  voluntary  application  to  dissolve  corporation  must  be  served  upon 
Attorney-General,  otherwise  order  is  void.  Id. 

Action  for  forfeiture  of  charter  on  ground  of  suspension  of  business  can  not  be 
maintained  unless  continued  for  a  year.  People  t«.  A.  A.  R.  R.  Co.,  126  N.  T., 
513. 

Omission  to  run  trains  for  five  days  will  not  suffice.     Id. 

Failure  to  observe  chap.  529  of  1887,  is  not  legal  cause  for  forfeiture.     Id. 

Neither  six  days  dijcontinuance  of  business,  nor  exactions  from  its  employee*  of 
more  than  ten  hours  labor  a  day,  is  ground  for  action  to  dissolve  corporation. 
People  v.  A.  A.  R.  C.,  57  Hun,  378. 

Code  authorizes  action  to  dissolve  corporation  when  it  has  violated  any  provision 
of  law,  whereby  it  has  forfeited  its  charter  or  become  liable  to  be  dissolved  by 
abuse  of  its  power.  People  v.  North  R.  S.  R.  Co.,  121  N.  Y.,  582. 

What  constitutes  actual  corporate  conduct.     Id. 

Leave  to  renew  action  to  forfeit  charter  will  not  be  granted,  where  corporation*, 
relying  upon  discontinuance  of  former  proceedings,  has  increased  its  capital  and 
ma  le  contracts  to  complete  its  works.  Matter  of  People  v.  E.  G.  L.  Co..  32  N.  Y. 
St.  Rep.,  1128. 

25 


GKNBRAL  CORPORATION  LAW. 

It  is  the  geaeral  principle  that  a  corporation,  by  omitting  to  perform  a  duty 
imposed  by  its  charter  or  to  comply  with  its  provisions,  does  not  f pso  facto  loue  its 
corporate  character  or  cease  to  be  a  corporation,  but  simply  exposes  itself  to  the 
dauger  of  being  deprived  of  its  corporate  character  and  franchises  by  the  judg> 
m«ut  of  the  court  in  an  action  instituted  for  that  purpose  by  the  Attorney-General 
in  behalf  of  the  people.  Brooklyn  8.  T.  Co.  v.  City  of  Brooklyn,  78  N.  Y.,  524. 
Still 'the  Legislature  has  the  power  to  provide  that  a  corporation  may  lose  its  cor- 
porate existence  without  the  intervention  of  the  courts,  by  any  omission  of  duty  or 
violation  of  its  charter  or  def/iult  as  to  limitations  imposed.  Id.  It  is  immaterial 
whether  such  provision  is  contained  in,  and  the  corporation  is  organized  under,  a 
general  law  or  a  special  charter.  Id.  In  such  case  it  needs  no  action  or  judicial 
procedure  to  declare  or  complete  a  forfeiture  of  the  charter  and  loss  of  corporate 
power.  Matter  of  Brooklyn,  etc.,  R.  R.  Co.,  75  N.  Y.,  335;  72  id.,  245S.  The 
statute  executes  itself.  Id.  The  loss  of  its  corporate  rights  and  powers  may  be 
asserted  by  any  one  whose  rights  may  be  affected  by  its  assumption  of  corpoi  at«  v 
powers.  Id. 

Ca  ise  of  forfeiture  does  not  per  se  work  forfeiture  without  judicial  determina- 
tion, unless  it  was  intended  that  the  statute  should  execute  itself.  Matter  of 
BI--H  klyn  E.  R.  Co.,  32  N.  Y.  St.  Rep.,  10u.",  ;  ait'd  35  id.,  45. 

A  ft-rMture  of  the  franchises  of  a  corporation,  unless  there  is  s;  me  special  pro- 
vision by  statute,  can  lie  enforced  only  by  the  sovereign  power  to  which  the 
corporation  owes  its  life,  in  some  proceeding  instituted  in  behalf  of  such 
sovereignty.  Denike  u.  N.  Y.  &  R.  L.  &  C.  Co.,  80  N.  Y.,  f99. 

An  action  to  dissolve  surh  corporation  can  not  be  maintained  by  a  portion  of  the 
stockholdei-8.  Id. 

In  the  absence  of  proof  of  fraud,  mismanagement  or  wrong-doing  on  the  part  of 
the  directors,  it  is  discretionary  with  the  court  to  appoint  a  receiver  of  the  property 
of  the  corporation,  though  utterly  insolvent;  the  stockholders  have  no  absolute 
right  to  such  appointment.  Id. 

A  corporation  can  not  be  said  to  have  committed  an  act  of  insolvency,  or  to  have 
neglected  or  refused  to  pay  its  obligations,  because  its  demand  notes  remain  out- 
standing until  peyment  has  been  demanded.  Id. 

An  unlawful  lease  ot  the  corporate  property  does  not  give  a  portion  of  the  stock- 
holders  a  standing  in  a  court  of  equity  to  ask  for  a  dissolution  of  the  corporation. 
Id. 

A  corporation,  which  has  been  enjoined  from  the  exercise  of  its  corporate  fran- 
chises and  deprived  of  its  property,  and  thus  ceased  to  exist  for  all  practical  pur- 
poses, is  not  thereby  actually  dissolved.  Kincaid  v.  Dwindle,  59  N.  Y.,  f>48. 

To  effect  a  dissolution  of  a  corporation  there  must  be  a  judgment  of  a  court  of 
competent  jurisdiction  declaring  it  dissolved.  Id.  Hollingshead  v.  Woodward, 
35  Hun,  410. 

Until  such  judgment,  creditors  may  proceed  by  suit  against  the  corporation, 
unless  restrained  by  injunction.  Id.;  People  v.  President,  etc.,  9  "Wend..  351  ; 
Matter  of  Ref.  Pres.  Ch.,  7  How.,  47t>  ;  Mickles  V.  Rochester  City  Bk.,  11  Paige, 
118. 

A  corporation  can  not  be  held  to  be  actually  dissolved  till  so  adjudged  and  deter- 
mm«-.l.  either  by  judicial  sentence  or  sovereign  power.  Kincaid  th,Dwinelle,  ante. 
In  Slee  v.  Bloom,  19  Johns.,  456,  the  corporation  was  held  to  be  mssolvfld  by  the 
non-election  of  trustees  and  non-user  of  the  franchises  for  a  length  of  time,  and  a 
sale  by  the  sheriff  of  all 'its  real  and  personal  property  on  execution.  The  acts 
done  and  suffered  to  be  done,  were  regarded  as  equivalent  to  a  direct  surrender 
of  the  charter. 

Until  judgment  dissolving  the  corporation  and  ending  its  existence,  a  contract 
can  be  enforce  against  the  company  as  well  after  as  before  the  appointment  of  a 
receiver.  Pringle  v.  Woolworth,  90  N.  Y.,  502. 

A  corporation  may  appeal  from  a  judgment  declaring  it  to  be  dissolved,  and 
from  the  orders  based  on  the  judgment  or  growing  out  of  the  proceedings  taken 
to  enforce  it.  Kelsey  v.  Pfuudler  P.,  etc.,  Co.,  15  Abb.  N.  C.,  427. 

The  dissolution  of  a  corporation  must  be  judicially  ascertained  and  declared. 
Plans  t>.  HOIIHIIIIIM.  17  N.  Y.  St.  Ro,,  .  f,71. 

§  82.  Extension  of  corporate  existence. — Any  domestic  cor- 
poration at  any  time  before  the  expiration  thereof,  may  extend  the 
.  oi  ita  existence  beyond  the  time  specified  in  its  original  certifi- 
of  incorporation,  or  by  law,  or  in  any  certificate  of  extension  of 
corporate  existence,  by  the  consent  of  the  stockholders  owning  two- 

26 


GENERAL  CORPORATION 

thirds  in  amount  of  its  capital  stock,  or  if  not  a  stock  corporation,  by 
the  consent  of  two-thirds  of  its  members,  which  consent  shall  be 
given  either  in  writing  or  by  vote  at  a  special  meeting  of  the  stock- 
holders-called for  that  purpose,  upon  the  same  notice  as  that  required 
for  the  annual  meetings  of  the  corporation  ;  and  a  certificate  under 
the  seal  of  the  corporation  that  such  consent  was  given  by  the 
stockholders  in  writing,  or  that  it  was  given  by  vote  at  a  meeting  as 
aforesaid,  shall  be  subscribed  and  acknowledged  by  the  president  or 
a  vice-president,  and  by  the  secretary  or  an  assistant  secretary  of 
the  corporation,  and  shall  be  filed  in  the  office  of  the  secretary  of 
state,  and  shall  by  him  be  duly  recorded  and  indexed  in  a  book 
specially  provided  therefor,  and  a  certified  copy  of  such  certificate, 
with  a  certificate  of  the  secretary  of  state  of  such  filing  and  record, 
or  a  duplicate  original  of  such  certificate,  shall  be  filed  and  similarly 
recorded  and  indexed  in  the  office  of  the  clerk  of  the  county  wherein 
the  corporation  has  its  principal  place  of  business,  and  shall  be  noted 
in  the  margin  of  the  record  of  the  original  certificates  of  such  cor 
poration,  if  any,  in  such  offices,  and  thereafter  the  term  of  the 
existence  of  such  corporation  shall  be  extended  as  designated  in  such 
certificate.  If  the  term  of  existence  of  any  domestic  corporation 
shall  have  expired  and  it  shall  be  made  satisfactorily  to  appear  to  the 
supreme  court  that  such  corporation  was  legally  organised,  pursu- 
ant to  any  law  of  this  state,  and  that  it  shall  have  issued  its  bonds 
payable  at  a  date  beyond  the  date  fixed  in  its  charter  or  certificate  of 
of  incorporation  for  the  expiration  of  its  corporate  existence,  and  such 
bonds  shall  be  unmatured  and  unpaid,  the  supreme  court  may,  upon 
the  application  of  any  person  interested  and  upon  such  notice  to  such 
other  parties  as  the  court  may  require,  by  order,  authorize  the  filing 
and  recording  of  a  certificate  reviving  the  existence  of  such  corpora- 
tion upon  such  conditions  and  with  such  limitations  as  such  order 
shall  specify,  and  extending  such  corporate  existence  for  a  term 
not  exceeding  the  term  for  which  it  was  originally  incorporated. 
Upon  filing  and  recording  such  certificate  in  the  same  manner  as 
certificates  of  extension  of  corporate  existence  duly  issued  before  the 
expiration  of  the  existence  of  a  domestic  corporation  is  authorized 
by  law  to  be  filed  and  recorded,  such  corporate  existence  shall  be 
revived  and  extended  in  pursuance  of  the  terms  of  such  order,  but 
such  revival  and  extension  shall  not  affect  any  litigation  commenced 
after  such  expiration  and  pending  at  the  time  of  such  revival. 

If  a  corporation  formed  under  or  subject  to  the  banking  law,  such 
certificate  shall  not  be  filed  or  recorded  unless  it  shall  have  indorsed 
thereon  the  written  approval  of  the  superintendent  of  banks ;  or,  if 
an  insurance  corporation,  unless  it  shall  have  indorsed  thereon  the 
written  approval  of  the  superintendent  of  insurance ;  and,  if  a  turn- 
pike or  bridge  corporation,  it  shall  not  be  filed  unless  it  shall  have 
indorsed  thereon  or  annexed  thereto  a  certified  copy  of  a  resolution 
of  the  board  of  supervisors  of  each  county  in  which  such  turnpike 
or  bridge  is  located,  approving  of  and  authorizing  such  extension. 
If  all  the  stock  of  a  corporation  other  than  a  corporation  formed  under 
or  subject  to  the  banking  law,  or  an  insurance  corporation,  or  a  turn- 
pike, plank-road  or  bridge  corporation  shall  be  lawfully  owned  by 
another  stock  corporation  entitled  by  law  to  take  a  surrender  and 
merger  thereof,  the  corporate  existence  of  such  corporation  whose 
stock  is  so  owned  may  be  extended  at  any  time  for  the  term  of  the 
corporate  existence  of  the  possessor  corporation,  bv  filing  in  the  of- 

27 


GKNRUAI.  Coin-on  \TIOX   LAW. 

fice  or  office-  in  which  the  ori<riiM:  te  or  certi  tion 

of  the   first-mentioned   corporation   were   tiled   u    certificate  of  such   extension 
Mod   l.v  it-  president  and  secretary  and  by  such   corporation  owning  all 
the   <h;m->   of   it-   i-upital   stock.     Every   corporation   extending   its   corporal 
exigence  under  this  chapter  or  under  any  general  law  of  the  state  shall  there 
t  to  the  provisions  of  this  chapter  and  of  such  general  law,  not- 
ny   special   provisions   in   its   charter,   and  shall   thereafter   be 
deemed  to  be  incorporated  under  the  general  laws  of  the  state  relating  to  the 
incorporation     of     a     corporation,     for     the     purpose    of    carrying    on    the 
in  which  it  is  engaged,  and  sh  ill  he  subject  to  the  provisions  of  such 
law.     The   certificate  of  incorporation  of  any  corporation  whose  duration  is 
limited  l>y  <neh  certificate  or  by  law.  may  require  that  the  consent  of  stock- 
holders owning  a  greater  percentage  than  two-thirds  of  the  stock,  if  a  stock 
corporation,  or  of  more  than  two-thirds  of  the  members,  if  a  non-stock  cor- 
poration, shall  be  requisite  to  effect  an  extension  of  corporate  existence  as 
authorized  by  this  section. 

Amended  by  ch.  3f>5  of  1901.     In  effect  April  16,  1901. 
Amended  by  ch.  256  of  1905. 

See  section  2,  chap.  29  of  1857,  section  2  of  chap.  13  of  1867,  section  1,  chap.  9Vt 
of  1867,  and  section  29,  chap.  611  of  1875,  now  repealed. 
Bee  People  ex  rel.  Clauson  v.  Newburgh,  etc.,  R.  R.  Co.,  86  N.  T..  1. 

§  33.  Conflicting  corporate  laws. —  If  in  any  corporate  law  th»r« 
is  or  shall  be  any  provision  in  conflict  with  any  provisions  of  this  chap- 
ter or  of  the  stock  corporation  law,  the  provisions  so  conflicting  shall 
prevail,  and  the  provision  of  this  chapter  or  of  the  stock  corporation 
law  with  which  it  conflicts  shall  not  apply  in  such  a  case.  If  in  any 
such  law  there  is  or  shall  be  a  provision  relating  to  a  matter  embraced 
in  this  chapter  or  in  the  stock  corporation  law,  but  not  in  conflict  with 
it,  such  provision  in  such  other  law  shall  be  deemed  to  be  in  addition 
to  the  provision  in  this  chapter  or  in  the  stock  corporation  law  relating 
to  tlir  same  subject-matter,  and  both  provisions  shall,  in  such  case., 
In1  applicable. 

New. 

See  Adams  v.  Wallace,  82  App.  Div.,  117. 

§  34.  Laws  repealed.—  Of  the  laws  enumerated  in  the  schedule 
hereto  annexed,  that  portion  specified  in  the  last  column  is  repealed, 
Such  repeal  shall  not  revive  a  law  repealed  by  any  law  hereby 
repealed,  but  shall  include  all  laws  amendatory  of  the  laws  hereby 
repealed. 

Former  section  93. 

People  v.  O'Brien,  111  N.  T.,  1. 

§  35.  Saving  clause. — The  repeal  of  a  law  or  any  part  of  it  speci- 
fied in  the  annexed  schedule  shall  not  affect  or  impair  any  act  done, 
or  right  accruing,  accrued  or  acquired,  or  liability,  penalty,  forfeiture 
or  punishment  incurred  prior  to  May  1,  1891,  under  or  by  virtue  of 
any  law  so  repealed,  but  the  same  may  be  asserted,  enforced,  prose- 
cuted or  inflicted,  as  fully  and  to  the  same  extent  as  if  such  law  had 
not  been  repealed.  All  actions  and  proceedings,  civil  or  criminal,  com- 
menced under  or  by  virtue  of  the  laws  so  repealed,  and  pending  OD 
April  SO,  1891,  may  be  prosecuted  and  defended  to  final  effect  in  the 
same  manner  as  they  mi^ht  under  the  laws  then  existing,  unless  it 
flhnll  bp  otherwise  «pocially  provided  by  law. 
'24. 


GENERAL  CORPORATION  LAW. 

§  36.  Construction. — The  provisions  of  this  chapter,  and  of  the 
stock  corporation  law,  the  railroad  law,  the  transportation  corporations 
law,  and  the  business  corporations  law,  so  far  as  they  are  substantially 
the  same  as  those  of  laws  existing  on  April  30,  1891,  shall  be  construed 
as  a  continuation  of  such  laws'  modified  or  amended  according  to  the 
language  employed  in  this  chapter,  or  in  the  stock  corporation  law,  the 
railroad  law,  the  transportation  corporations  law,  or  the  business  cor- 
porations law,  and  not  as  new  enactments. 

References  in  laws  not  repealed  to  provisions  of  laws  incorporated 
into  the  general  laws  hereinbefore  enumerated  and  repealed,  shall  be 
construed  as  applying  to  the  provisions  so  incorporated. 

Nothing  in  this  chapter  or  in  the  other  general  laws  hereinbefore  spe- 
cified shall  be  construed  to  amend  or  repeal  any  provision  of  the  Crimi- 
nal or  Penal  Code  or  to  impair  any  right  or  liability  which  any  exist- 
ing corporation,  its  officers,  directors,  stockholders  or  creditors  may 
have  or  be  subject  to  or  which  any  such  corporation,  other  than  a  rail- 
road corporation,  had  or  was  subject  to  on  April  30,  1891,  by  virtue  of 
any  special  act  of  the  legislature  creating  such  corporation  or  creating 
or  defining  any  such  right  or  liability,  unless  such  special  act  is  re- 
pealed by  this  chapter. 

Former  section  25  amended. 

§  37.  Law  revived. — Chapter  three  hundred  of  the  laws  of  eighteen 
hundred  and  fifty-five,  entitled  "  An  act  to  incorporate  the  Baptist 
Historical  Society  of  the  city  of  New  York,"  which  was  inadvertently 
repealed  by  the  transportation  corporations  law,  is  revived  and  re- 
enacted,  aivd  shall  be  of  the  same  force  and  effect  as  if  it  had  not  beer 
repealed. 

§  38.  When  notice  or  lapse  of  time  unnecessary.— Whenever  under 
the  provisions  of  any  of  the  corporate  laws  a  corporation  is  authorized  to  take  any 
action  after  notice  to  its  members  or  after  the  lapse  of  a  prescribed  period  of  time, 
such  action  may  be  taken  without  notice  and  without  the  lapse  of  any  period  of 
time,  if  such  action  be  authorized  or  approved,  and  such  requirements  be  waived 
in  writing  by  every  member  of  such  corporation,  or  by  his  attorney  thereunto 
authorized. 

Added  by  ch.  672  of  1895.     Took  effect  May  14,  1895. 

§  39.  As  to  acts  of  directors. — Whenever,  under  the  provisions  of  any  of 
the  corporate  laws,  a  corporation  is  authorized  to  take  any  action  by  the  agree- 
ment or  action  of  its  directors,  managers  or  trustees,  such  agreement  or  action 
may  be  taken  by  such  directors,  regularly  convened  as  a  board,  and  acting  by  a 
majority  of  a  quorum,  except  when  otherwise  expressely  required  by  law  or  the 
by-laws  of  the  corporation  and  any  such  agreement  shall  be  executed  in  behalf  of 
the  corporation  by  such  officers  as  shall  be  designated  by  the  board  of  directors, 
managers  or  trustees.  At  any  meeting  at  which  every  member  of  the  board  of 
directors  shall  be  presen'.,  though  held  without  notice,  any  business  may  be  trans- 
acted which  might  have  been  transacted  if  the  meeting  had  been  duly  called. 
Except  when  otherwise  required  by  law  or  the  by-laws  of  the  corporation,  special 
meetings  of  the  members  of  the  corporation  may  be  called  in  the  same  manner 
as  the  annual  meeting  thereof. 

Amended  b}'  ch.  355  of  1901.     In  effect  April  16,  1901. 

§  40.  Alteration  and  repeal  of  charter.— The  charter  of  every  corporation 
shall  be  subject  to  alteration,  suspension  and  repeal,  in  the  discretion  of  the  legis- 
lature. 

Added  by  ch.  672  of  1895.    Took  effect  May  14,  1895' 


GENEEAI,  COKPOEATION  LAW. 

§  41.  Political  contributions  prohibited. — No  corporation  or 
joint  stock  association  doing  business  in  this  State,  except  a  cor- 
poration or  association  organized  or  maintained  for  political  pur- 
poses only,  shall  directly  or  indirectly  pay  or  use  or  offer,  con- 
sent or  agree  to  pay  or  use  any  money  or  property  for  or  in  aid 
of  any  political  party,  committee  or  organization,  or  for,  or  in 
aid  of,  any  corporation,  joint-stock  or  other  association  organized 
or  maintained  for  political  purposes,  or  for,  or  in  aid  of,  any  can- 
didate for  political  office  or  for  nomination  for  such  office,  or  for 
any  political  purpose  whatever,  or  for  the  reimbursement  or  in- 
demnification of  any  person  for  moneys  or  property  so  used.  Any 
officer,  director,  stockholder,  attorney  or  agent  of  any  corporation 
or  joint-stock  association  which  violates  any  of  the  provisions  of 
this  section,  who  participates  in,  aids,  abets  or  advises  or  consents 
to  any  such  violation,  and  any  person  who  solicits  or  knowingly  re- 
ceives any  money  or  property  in  violation  of  this  section,  shall  be 
guilty  of  a  misdemeanor  and  punishable  by  imprisonment  in  a 
penitentiary  or  county  jail  for  not  more  than  one  year  and  a  fine 
of  not  more  than  one  thousand  dollars.  No  person  shall  be  ex- 
cused from  attending  and  testifying,  or  producing  any  books, 
papers  or  other  documents  before  any  court  or  magistrate,  upon 
any  investigation,  proceeding  or  trial,  for  a  violation  of  any  of  the 
provisions  of  this  section,  upon  the  ground  or  for  the  reason  that 
the  testimony  or  evidence,  documentary  or  otherwise,  required  of 
him  may  tend  to  convict  him  of  a  crime  or  to  subject  him  to  a 
penalty  or  forfeiture ;  but  no  person  shall  be  prosecuted  or'  sub- 
jected to  any  penalty  or  forfeiture  for  or  on  account  of  any  trans- 
action, matter  or  thing  concerning  which  he  may  so  testify  or  pro- 
duce evidence,  documentary  or  otherwise,  and  no  testimony  so 
given  or  produced  shall  be  received  against  him  upon  any  crimi- 
nal in  vest!  oration  or  proceeding. 

Added  by  chap.  239  of  1906.    In  effect  April  16,  1906. 


29a 


GBNRRAL  CORPORATION  LAW. 
SCHEDULE  07  LAWS  REPEALED. 


REVISED  STATUTES. 

Part  I,  chapter  18. 

All. 

LAWS  of 

Chapter 

SECTIONS. 

1811  

67  

All. 

1815  

47  

All'. 

1815  

202  

All. 

1816  

58    

All. 

1817  

223  

All. 

1818  

67  

All. 

1819  

102  

All. 

1821  

14  

All. 

1822  

213  

All. 

1836  

284  

All. 

1836  

316  

All. 

1838  

160...,  

All. 

1838  

161  

All. 

1838  

262  

All. 

1839  

218  

All. 

1842  

165  

All. 

1846  

155  

All. 

1846  

215  

17,  18. 

1847  

100  

3,  4. 

1847  

210  

All. 

1847  :  

222  

All. 

1847..}  

270  

All. 

1847  

272  

All. 

1847  

287  

All. 

1847  

398  

All. 

1847  

404  

All. 

1847  

405  

All. 

1848  

37  

All. 

1848  

40  

AU. 

1848  

45  

All. 

1848  

259  

All. 

1848  

265  :  

All. 

1848  

360  

All. 

1849  

250  

All. 

1849  

362  

All. 

1850  

71  

All. 

1850             

140  

All. 

1851  .  .    .        

14  

All. 

1851  

19  

All. 

1851  

98  

All. 

1851  

107  

All. 

1851  

487  

AU. 

1851 

497  

All. 

1852  

228  

All. 

1852... 

372  

AJL 

30 


GBNBRAL  CORPORATION  LAW. 
SCHBDULB  OF  LAWS  RBPBALBD —  (Continued.) 


Law*  of 

Chapter 

SECTIONS. 

18B3 

53  

All. 

1853 

117  

All. 

124  

All. 

1853   

135  

All. 

1863   

245  

All. 

1863    

333  

All. 

1853   

471  

1,2,  4. 

1853   

481  

All. 

1853   

502  

All. 

1863  

626  

All. 

1854  

3  

All. 

1854  

87  

All. 

1854  

140  

All. 

1864  

201  

All. 

1864  

232  

All. 

1854  

269  

All. 

1864  

282  

All. 

1854  

312  

All. 

1866  

301  

All. 

1855  

302  

All. 

1865  

390  

All. 

1855  

478  

All. 

1865  

485  

All. 

1855  

495  

All. 

1866  

546  

All. 

1855  

559  

All. 

1856  

65  

All. 

1857  

29  

All. 

1867  

83  

All. 

1857  

185  

All. 

1857  

202  

All. 

1867  

262  

All. 

1857  

444  

All. 

1867  

546  

All. 

1857  

558   .  .. 

All 

1857  

643  

All. 

1857  

776  

All 

1868  

10   

All 

1858  

125  

All 

1859  ^  

209 

All 

1869  

311 

All 

1869  

455  

All 

1860  , 

116  

All 

1860  

269 

All 

1860  

623 

All 

1861  , 

149 

All 

1861  

170 

All 

1861  

215... 

All. 

GENERAL  CORPORATION  £AW. 
SCHBDULE  OF  LAWS  REPEALED  —  (Continued.) 


Laws  of 

Chapter 

SECTION!. 

1861  

238  

All. 

1862  

205..  

All. 

1862  

248  

All. 

1862  

425  

All 

1862  

438  

All. 

1862  

449  

All. 

1862  

472  

All. 

1863  

63  

All. 

1863  

134  

All. 

1863  

346  

All. 

1864  

85  

All. 

1864  

337  

All. 

1864  

517  

All. 

1864  

582  

All. 

1865  

234  

All. 

1866  

246  

All. 

1866  

307  

All. 

1866  

691  

All. 

1865  

780  

All. 

1866  

73  

All. 

1866  

259  

All. 

1866  

322  

All. 

1866  

371  

All. 

1866  

697  

All. 

1866  

-780  

All. 

1866 

799  

All. 

1866  

838  

All. 

1867  

12  

All. 

1867  

49  

All. 

1867        

248  

All. 

1867    

254  

All. 

1867   

419  

All. 

1867    

480  

All. 

1867 

509...  .0  :. 

All. 

1867 

775  

All. 

1867 

906  

All. 

1867 

937  

All. 

1867 

960  

All. 

1867             

974  

All. 

1868 

253  

All. 

1868 

290  

All. 

1868 

573  

All. 

781  

All. 

1869 

234  

All. 

1869 

237  

All. 

1869 

606  

AIL 

1869 

706  

AIL 

1869...          

844  

All. 

32 


GBNBRAL  CORPORATION  LAW. 
SCHBDDLB  OP  LAWS  RsFBALBD  —  (Continued.) 


Laws  of 

Chapter 

SECTIONS. 

1869   

917  ..  

All. 

1870  

124  

All. 

1870  -  

135  

All. 

1870  

322  

All. 

1870  

443  

All. 

187G  

568  

All. 

1870  

773  

All. 

1871  

95  

All. 

1871  

481  

All. 

1871  

535  

All. 

1871  

560  

All. 

1871  

657  

All. 

1871  

669  

All. 

1871  

697  

All.  . 

1871  

883  

All. 

1872  

81  

All. 

1872  

128  

All. 

1872  

146  

All. 

1872  

248  

All. 

1872  

283  

All. 

1872  

350  

All. 

1872  

374  

All 

1872  

426  

All 

1872  

609  

All. 

1872  

611  

All. 

1872  

779  

All 

1872  

780  

All 

1872  

820  

All  except  90 

1872  

829  

All 

1872  

843  

All 

1873  

151         .  . 

All 

1873  

352  

All 

1873  

432         

All 

1873  

440        

All 

1873  

469 

All 

1873  

616        

All 

1873  

710  

All 

1873  

737  

All 

1873  

814 

All 

1874  

76 

All 

1874  

143 

All 

1874  

14ft 

All 

1874  

240 

All 

1874  

288 

All 

1874  

430 

All 

1875  

All 

1875  

All 

1875  

88... 

All. 

GBJCBRAL  CORPORATION  LAW. 

SCHBDULB   OF  LAWS   RBPBALBD —  (Continued.) 


Laws  of 

Chapter 

SECTION* 

1875  ;  

108  

All. 

1875  

113  

All 

1875  

119  

All. 

1875  

120  

All. 

1875  

159  

All. 

1875  -.  

193  

All. 

1875  

256....  

All. 

1875  

319  

All. 

1875  

365  

All. 

1875  

445  

All. 

1875  >  

510  

All. 

1875..,,  

586  

All. 

1875  

598  

All. 

1876  

606  

All. 

1875  

611  

AH. 

1876  

77  

All. 

1876  

135  

All. 

1876  

198  

All. 

1876  

280  

All. 

1876  

358  

All. 

1876  

373  

All. 

1876  

415  

AD. 

1876  

435  

All. 

1876  

446  

All. 

1877  

103  

All. 

1877  

158  

All. 

1877  

164  

All. 

1877  

171  

All. 

1877  

224  

All. 

1877  

266  

All. 

1877  

374  

All. 

1878  

61  

All. 

1878  4  

121  

All. 

1878  

163  

All. 

1878  

203  

All. 

1878  

210  

All. 

1878  .".. 

261  

All. 

1878  ,.... 

264  

All. 

1878  

316  

All. 

1878  

334  

All. 

1878  

394  

All. 

1879  

214  

All. 

1879  

253  

All. 

1879  

290  

All. 

1879  

293  

All. 

1879  

350  

All. 

1879  

377  

All. 

1879... 

393  

All. 

34 


GEHBRAL  CORPORATION  LAW. 
SCHEDULE  OF  LAWS  REPEALED  —  (Continued.) 


Laws  of 

Chapter 

SECTIOm 

1879  

395  

All. 

1879  

413  

All. 

1879  

415  

All. 

1879  

441  

All. 

1879  , 

503  

AIL 

1879  

505  

All. 

1879  

512  

All. 

1879  

541  

All. 

1880  

5  

All. 

1880  

85  

All. 

1880  

90  

All. 

1880  

94  

Ali 

1880  

113  

All. 

1880  

133  

AIL 

1880  

155  

All. 

1880  

182  

All. 

1880  

187  

AU, 

1880  

223  

All. 

1880  

225  

All. 

1880  

241  

All. 

1880  

254  

AIL 

1880  

263  

All. 

1880  

267  

All. 

1880  

349  

All. 

1880  

415  

All. 

1880  

417  

AIL 

1880  

484  

All. 

1880  

510  

AIL 

1880  

575  

All. 

1880  

582  

AIL 

1880  

583  

All. 

1880  

585  

AIL 

1881  

22  

All. 

1881  

58  

All. 

1881  

77  

All. 

1881  

117  

AIL 

1881  

148  

AIL 

1881  

213  

All. 

1881  

232  

All. 

1881  

295  

All. 

1881  

296  

All. 

1881  

311  

All. 

1881  

313  

AIL 

1881  

321  

All. 

1881  

337  

All. 

1881  

338  

All. 

1881  

351  

AIL 

1881.., 

399... 

All. 

35 


&BNBRAL  CORPORA-TICK  LAW. 
SCHBDDLB  OF  LAWS  RBPBALBD — (Continued.) 


LAW*  of 

Chapter 

8KCTIOH8. 

1881  

422  

All 

1881  

464  

All 

1881  

468  

All 

1881  

470  

All. 

1881  

472  

All 

1881  

485  

All. 

1881  

551  

All. 

1881  

589  

All. 

1881  

649  

All 

1881  

650  

All. 

1881  

674  

All. 

1881  

685  

All. 

1882  

73  

All. 

1882  

82  

All 

1882  

140  

All. 

1882  

273  

All. 

1882  

289  

All. 

1882  

290  

All. 

1882  

306  

All. 

1882  

309  

All 

1882  

349  

All 

1882  

353  

All 

1882  

393  

All 

1882  

405  

All 

1883  

46  

All. 

1883  

71  

AIL 

1883  

102  

All 

1883  

216  

AIL 

1883   

232  

All. 

1883 

237  

All. 

1883    

238  

All. 

1883   

240  

All. 

1883  

287  

All. 

1883  

323  

All. 

1883   

361.....'  

All. 

1883   

381  

All. 

1883    

382  

All. 

1883   -.. 

384  

All. 

1883  

386  

All. 

1883  

387  

All. 

1883    

388  

All. 

1883  

409  

All. 

1883          

482  

All. 

1883            

488  

All. 

1883          

497  

All. 

1884  ...    

140  

All. 

1884  

193  

All. 

1884... 

208  

All. 

GrKNBRAL    CORPORATION    LAW. 

SCHEDULE  OP  LAWS  REPEALED  —  (Continued.) 


Law*  of 

Chapter 

SECTIONS. 

1884  

223  

All. 

1884  

252  

All. 

1884  

267  

All. 

1884  

367  

All. 

1884  

386  

All 

1884...  

397  

All. 

1884  

421  

All. 

1884  

422  

All. 

1884  

439  

All. 

1884  

441  

All. 

1884  

444  

All. 

1885  ,  

84  

All. 

1885  

127  

All. 

1885  

141  

All. 

1885  

153  

All. 

1885  

171  

All. 

1885  

305  

All. 

1885  

369  

All. 

1885  

422  

All. 

*885  

423  

All. 

1885  

489  

All. 

1885  

498  

All. 

1885  

535  

All. 

1885  

540  

All. 

1885  

549  

All. 

1886  

65  

All. 

1886  

182  

All. 

1886  

271  

All. 

1886  

321...  

All. 

1886  

322  

All. 

1886  

403  

AIL 

1886  

415  

All. 

1886  

609  

AD. 

1886  

651  

All. 

1886  

579  

All. 

1886  

586  

All. 

1886  

592  

All. 

1886  

601  

All. 

1886  

605  

All. 

1886  

634  

All. 

1886  

642  

All. 

1887  

460  

All. 

1887  

486  

All. 

1887  

536  

All. 

1887  

670  

All. 

1887  

616  

All. 

1887  

622  

All. 

1887... 

724... 

All. 

37 


GKNBRAL  CORPORATION  LAW. 
SCBUDULB  or  LAWS  RKPBALBD  —  (Condiided). 


L*w»of 

Chapter 

SBCTIONI. 

1888  

189  

All 

1888  

306  

All  • 

1888  

313  

All 

1888  

359  

All 

1888  

394  

All 

1888  

447  

All 

1888  

462  

All. 

|888  

513  

All 

|888  

614  

All- 

1888  

649  

All. 

1888  

560  

All. 

1889  

57  

All 

1889  

76  

All. 

1889  

78  

All. 

1889  

236  

All. 

1889  

242  

All. 

1889  

281  

All. 

1889  

332  

All. 

1889  

369  

All. 

1889  

426  

All. 

1889  

519  

All. 

1889  

524  

All 

J889  

531  

All 

1889  

532  

All. 

1889  

564  

All. 

1890  

23  

AIL 

1890  

98  

AIL 

1890  

119  . 

AIL 

1890  

193  

AIL 

1890  

292  

AIL 

1890  

416  

AIL 

1890  

421  :. 

AIL 

1890  

483  

AIL 

1890  

497  

All. 

1890  

505  

AIL 

1890  

508  

All. 

1890  

543  

All. 

1891  

67  

All. 

1891  

287  

All. 

1892  

2  

AIL 

GENERAL  CORPORATION  LAW. 

No.  1. 
Section  7.     Amended  or  supplemental  certificate. 

&TATX  OF  NBW  YORK,  > 

County  of .  j 

We,  the  undersigned,  directors  of ,  under  the  authority  given 

by  section  7  of  the  general  corporation  law  of  1892,  do  hereby  certify 
that,  in  the  original  (or  amended  or  supplemental)  certificate  of  incor- 
poration, a  matter,  not  authorized  by  law  to  be  therein  stated,  has  been 
inserted  (or  a  matter  required  to  be  stated  therein  has  been  omitted), 
to  wit :  (here  particularly  state  the  defect, ;  » 

To  conform  to  the  requirements  of  the  law,  we  do  make  and  file  this 
amended  certificate,  and  for  such  purpose  certify  and  allege  as 
follows : 

(Here  set  forth  all  the  allegations  of  the  former  certificate,  supplying 
at  omitting  the  aforesaid  recital.) 

In  witness  whereof,  we,  the  said  directors,  have  executed  this  cer- 
tificate in  duplicate,  and  hereto  set  our  hands  this day  of 

:,18~. 

(Signatures  of  Directors.) 

STATB  OF  NBW  YORK,     \ 
County  of .  /  * 

On  this day  of ,  18 — ,  before  me  personally  came 

,  to  me  known  to  be  the  persons  described  in,  and  who  executed, 
the  foregoing  amended  certificate,  and  they  severally  acknowledged 
that  they  executed  the  same  for  the  intents  and  purposes  therein 
mentioned. 

Justice  of  the  peace. 


No.  2. 
Section  21.    Proxy  to  Vote. 

KKOW  ALI  HBN  BT  THBBB  PRESENTS,  that  I,  Thomas  Doe,  do  hereby 
constitute  and  appoint  John  Jones  to  be  my  lawful  attorney,  substitute 
nud  proxy,  for  me  and  in  my  name,  to  vote  on  all  the  stock  held  by  me 

80 


GENERAL  CORPORATION  LAW — FORMS. 

in  the  Jones  Manufacturing  Company,  at  any  election  for  directors,  aa 
fully  as  I  might  or  could  do,  were  I  personally  present  at  such  election. 
And  I  hereby  revoke  any  proxy  or  proxies  heretofore  given  by  me  to 
any  person  or  persons  whomsoever. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal  this 

day  of—    — ,  18—. 

(Signed)  THOMAS  Do».  [L.  a.] 

'   In  presence  of 

RICHARD  ROB. 

STATB  OP  NEW  YORK, 
County  of 

Thomas  Doe,  being  duly  sworn,  says  that  the  stock  (or  bonds)  upon 
which  the  foregoing  power  or  proxy  to  vote  is  given  are  in  his  possession 
and  under  his  control ;  that  he  has  not  ceased  to  retain  title  thereto, 
and  that  the  foregoing  power  or  proxy  to  vote  has  not  been  issued  for 
any  sum  of  money  or  anything  of  value. 

(Jurat.)  . 

Forms  of  oath  to  be  administered  by  inspectors  to  stockholders  and 
proxies  are  found  in  section  22  of  the  General  Corporation  law. 


No.  3. 

8«6*on  32.     Form  of  Contmt. 

STATE  or  N«w  YORK,     ) 
County  of ,  / 

We,  the  stockholders  of  the ,  a  domestic  corporation,  owning 

two-thirds  in  amount  of  its  capital  stock,  do,  pursuant  to  the  pro- 
visions  of  section  32  of  the  general  Corporation  Law  of  1892,  hereby 
certify  that  we  severally  consent  to  the  extension  of  the  term  of  the 

corporate  existence  of  said  company  for  a  further  period  of 

years  beyond  the  time  fixed,  by  the  certificate  of  incorporation,  for 
the  termination  of  its  corporate  existence. 

In  witness  whereof,  we  have  hereto  severally  set  our  hands  and 
annexed  thereto  the  respective  number  of  shares  of  stock  owned  by 

00,  in  said  company,  tbie day  of ,  18 — . 

(Names  and  stock) 
(For  instance). 

BO  Share*. 

100       " 

— — —    36       ** 

40 


QBNBRAL  CORPORATION  LAW — FORMS. 
(Acknowledgment  clause  as  in  No.  1.) 
STATB  OF  NEW  YORK, 


County  of 


ss. 


,  being  duly  sworn,  says  that  he  is  the  — —  of  the  corpora- 
tion named  in  the  foregoing  consent  and  the  custodian  of  its  stock- 
book  ;  that  the  persons,  whose  names  are  subscribed  to  such  consent, 
are  the  owners,  upon  the  books  of  said  corporation,  of  the  number  of 
shares  of  stock  therein  set  opposite  to  their  respective  signatures  to  the 
above  consent,  and  that  such  stock  constitute  at  least  two-thirds  in 
amount  of  the  capital  stock  of  said  corporation. 

(Jurat.)  . 

The  above  form  can  be  readily  adapted  in  case  of  othei  than  stock 
oorporationB. 

41 


INDEX: 


A. 

SECTION 

Acquisition   of    additional    real    property 13 

Acquisition    of    property    in    other    states ,  14 

Acquisition   of   real   property   by   foreign   corporation 17,  18 

Actions    against    foreign    corporations l(i 

Actions  by   foreign   corporations 15 

Actions  collusively  brought,  stay  in 2S 

Actions   pending,   not   affected 35 

Additional  real  property,  court  may  permit  it  to  be  held 13 

Agents,   right   to    appoint,   etc.,   generally 11 

Agricultural    corporations,    classified 2 

Alteration    of    charter 40 

Alteration   of    seal,    right   to 11 

Amended  certificate  of  incorporation,  contents  and  effect  of . ...  7 

Amended  certificate   of   incorporation   as   evidence !> 

Amended  certificate  of  incorporation,  filing  of 5 

''Assurance  "  use  of  word,  when  prohibited 15 

Authority  of  directors  on  dissolution 30 

B. 

"  Bank  "   use   of   word,   when   prohibited 15 

"  Banking  "  use  of  word,  when  prohibited 15 

Banking  corporation,  a   monied   corporation 3 

Banking   powers,   when    prohibited 19 

Baptist  historical   society,  revived 37 

"  Benefit "  use  of  word,  when  prohibited 15 

Benevolent  orders,  classified  as  membership  corporations 2 

Bequest,  right  of  corporation  to  take  by 11 

Board   of   supervisors,   certain   approvals   by 32 

Board  of  trade  corporations,  classified 2 

Bookkeeper,  not  to  be  proxy 21 

Books,  to  be  produced  at  meetings 20 

Business  corporation,  classified 2 

"  Business  of  a  corporation,"   defined 3 

Business  to  be  commenced  within  two  years 31 

By-laws,  directors   to  be  controlled  by 11 

By-laws,  corporations  may  make 11 

By-laws,  may  fix  amount  of  stock  for  quorum 11 

By-laws,  members  may  adopt 29 

By-laws,  right  to  make,  generally 11 

43 


INDEX. 

SECTIO.V 

By-laws,  to  be  published,  etc 1 1 

By-laws,  what  may  be  prescribed  by 11 

By-laws,  when  directors  may  make 29 


G. 

Canvass  of  votes  at  special  election . ; 26 

Capital  stock,  divided  into  shares,  makes  stock  corporation 3 

Cemetery   corporation,    classified 2 

Certificate  authorizing  foreign  corporation  to  do  business 15,  16 

Certificate,  no  action  to  be  maintained  until  certificate  obtained 15 

Certificate,  when  not  granted,  proof  to  be  filed  before  granting 10 

Certificate   of   incorporation,   as   evidence 9 

Certificate   of   incorporation,   by   whom   executed 4 

Certificate  of  incorporation,  defects,  etc.,  in,  how  cured 7 

"Certificate  of  incorporation,"  defined 3 

Certificate  of  incorporation,  fees,  etc.,  to  be  paid  before  filing  of 5 

Certificate  of  incorporation,  filing,  etc.,  of 5 

Certificate,   how   amended 7 

Certificate,  when  amended,  entry  to  be  made 7 

Certificate  of  incorporation,  loss  of,  how  supplied , 8 

Certificate  of  incorporation,  may  regulate  affairs  of  corporation,  etc....  10 

Certificate  of  incorporation,   may   provide  as  to  elections 2') 

Certificate  of  incorporation,    supplemental 7 

( 'hallenges   at   election 22 

Charter,   alteration   and  repeal   of 40 

Charter,  special  provisions  of,  abrogated  on  renewal 32 

City  is  municipal  corporation 3 

Classification    of    corporations 2 

Clerk,  not  to  be  proxy 21 

Collusion,  actions  by,  stay  in 28 

Conflicting  corporate   laws 33 

Construction  clause   36 

Co-operative    corporation,    classified.  .  .x 2 

Corporate  affairs,  directors  to  manage 2!) 

Corporate  existence,  extension  of 32 

Corporate  existence  expired,  renewal  of 32 

"Corporate  law  or  laws,"  meaning  of 3 

(  orporate  laws,  conflict  of 33 

Corporate  names    0 

C'orporate  powers  not  to  be  exercised  until  taxes  and  fees  paid ~* 

Corporate  powers,    forfeiture   for   non-user 31 

( '<>rporate  powers,  limit  of  fixed 10 

Corporate  powers,  only,  to  be  exercised 10 

Corporations,  classification  of 2 

Corporation,  dissolution  of,  directors  as  trustees 30 

Corporation,  officers  of,  by-laws  to  regulate » 11 

Corporation,  general  powers  of 11 

44 


INDEX. 

Corporation,  extension  of  duration  of 32 

Corporation,  forfeiture  for  non-user 3j 

Corporation,  foreign,  authority  to  do  business 15f  ig 

Corporation,  foreign,  not  to  do  business  without  certificate 1,5 

Corporation,  general   powers  of .  .  . : 1 1 

Corporation   heretofore  organized,   may   adopt   cumulative   voting -in 

Corporation,  real  property,  acquisition  of  additional 13 

Corporations,   classification   of 2 

Corporations,  use  of  same  name  by,  prohibited 6 

County,  is  municipal  corporation 3 

County  clerk,  certificates  of  incorporation  when  to  be  filed  with 5 

Cumulative  voting,  may  be  allowed 20- 

D. 

Debts,  to  be  paid  on  dissolution 30 

Defects  in  certificate  of  corporation,   how  cured 7 

Definitions    2 

Destroyed   certificate  of   incorporation,  how  supplied 8 

Devise,  right  to  take  by 11 

Definitions    2 

Directors,   acts  of  as   a  board 3!) 

Directors,  actions   by   default   of,    stay   in 28 

Directors,  actions  by  procurement  of 28 

Directors   as  trustees  on  dissolution 30 

Directors,  election  of,   etc 20 

Directors,  failure  to  elect,  effect  of 23 

"  Directors,"    includes    what 3 

Directors,   majority   of,   power   of 29 

Directors,  at  least  one  to  be  resident  of  State 29 

Directors,  meeting  of  without  notice,  effect  of 30 

Directors,   quorum  of 20 

Directors,    residence    of 29 

Directors,  special  election  of 24,  23 

Directors,  to  be  controlled  by  by-laws 11 

Directors,  to  hold  over 23 

Directors  to  manage  corporate  affairs 29 

Dissolution,  directors  as  trustees  on 30 

Dissolution,  powers  of  trustees  on 30 

Distribution  on  dissolution  to  be  made 30 

"  Domestic  corporation,"   defined 3 

Domestic  corporation,  when  may  hold  property  without  the  State 14 

Domestic  corporation,  extension  of  existence  of 32 

Duration   of   corporation,   extension   of 32 

Duration   of   proxy 21 

E. 

Effect  of  failure  to  elect  directors 23 

Election,  challenges  at 22 

45 


INDEX. 

SECTION 

Election    of    directors -0 

Election  of  directors,  effect  of  failure  of 23 

Election  of  directors,  special 24,  25 

Election,   powers  of   supreme   court   respecting 27 

Election,   may   order   new 27 

Elections,  provisions  of  certificate  of  incorporation  as  to 20 

Election,   publication   of  by-laws   governing 11 

Election,   qualification  of  voter  at .  .  .  . 20 

Election,  right  to  vote  at,  how  determined 20 

Election,  special,  notice  of 24 

Election,  special,  of  directors 24,  25 

Evidence,  certificate  of  incorporation,  use  as 9 

Extension  of  corporate  existence 32 

Extent  of  corporate  power  defined 10 

Expiration  of  corporation,  renewal  after 32 

F. 

Failure,  to  designate  person  upon  whom  process  may  be  served,  by    for- 
eign corporation,  effect  of •  •  •  - 16 

Failure  to  elect  directors,  effect  of 23 

Fees  for  incorporation,  to  be  paid  before  certificate  filed,  etc 5 

Filing    certificate    of    incorporation 5 

Fire,   monument   corporations,   classified 2 

Foreign   corporation,    acquisition   of    real    property   by 17,  13 

Foreign    corporation,    certificate    of    authority J5 

Foreign  corporation,  when  action  cannot  be  maintained  by l."> 

"  Foreign  corporation,"   defined 3 

Foreign  corporation,  acquisition  of  real  property  by 17,  18 

Foreign  corporation,   may  convey   real   property  in  the  state 17,  IS 

Foreign  corporation,  name  of,  prohibition  as  to 1-1 

Foreign  corporation,  not  to  do  business  without  certificate :  .  15 

Foreign  corporation,  pre-requisites  to  doing  business  in  the  state....  15,  16 

Foreign  corporation,  proof  by,  before  doing  business 16 

Foreign   corporation,   purchases  by   at   judicial   sales 18 

Foreign  corporation  to  designate  person  upon  whom  process  to  be  served .  16 

Foreign  corporation  to  designate  principal   place  of  business  in  state..  10 

Foreign    corporation,    failure   to    designate    person,    etc 16 

Forfeiture  for  non-user 31 

Form   of   proxy 21 

G. 

General    powers,   what   included    in 11 

(Jcncral  reference  to  certain  corporations,  what  it  includes 2 

' :  i  1 1 ,   right  to  take  by 11 

Grant  of  general  powers,  what  it  includes 11 

Grant,  right  to  take  by 1 1 

"Guaranty"  and  "guarantee,"  use  of  words,  when  prohibited 15 

46 


INDEX. 

H. 

SECTION 
Horticultural  corporation,  classified 

I. 

Incorporators,  qualifications  of 4 

Incorporation,    certificate    of,    filing,    etc 5 

Incorporation,    how    amended 

Incorporation,  when  amended,  entry  to  be  made 7 

Incorporation,  loss  of  certificate,  etc.,  how  supplied tf 

Incorporation,  certificate  of,  as  evidence 9 

"  Indemnity,"  use  of  word,  when  prohibited 15 

Informalities  in  certificate  of  incorporation,  how  cured 7 

Inspectors,  to  administer  oaths 22 

"  Insurance,"   use  of  word,  when   prohibited 15 

Insurance  corporation,   a  monied   corporation 3 

"  Investment,"    use   of   word,    when    prohibited 15 

J. 

Judicial  sales,  purchases  by  foreign  corporation  at 13 


L. 

Lapse  of  time,  when  not  to  effect  corporation 38 

Laws,  conflicting    .'!H 

Laws  repealed  and  effect  of 34,  85 

Law   revived    .'57 

Liability  of  directors  on  dissolution 30 

Library  corporation,  classified 2 

Limit  of  corporate  powers  fixed 10 

Limit  of  property  of  non-stock  corporation 12 

Limit   of   proxy 21 

Limit  within  which  business  to  commence 31 

"  Loan,"   use   of  word,  when   prohibited IS 

Lost  certificate  of  incorporation,  how  supplied 8 

M. 

Majority  of  directors,  powers  of 29 

Management,  regulated  by  by-laws 11 

Meeting  of  directors  without  notice,  effect  of 39 

"  Member  of  corporation,"  includes  what 3 

Member   may  be   challenged   at  election '-2 

Members,  may  vote  by  proxy 21 

47 


INDEX. 

SECTION 

Members,  not  to  -ell  vote • -u 

Members,  powers  of,  at  special  elections 

Members,   when  may  apply  for   stay.  . -.  .  . .  28 

Members,  qualifications  of  as  voters 20 

Membership  corporation,   classified - 

Mistake  in  time  of  paying  bonds,  provided  for 32 

M ixed   corporation,   classified 2 

Mixed   corporation,   defined 3 

Mode  of  calling  special  election  of  directors 24,  25 

Mode  of  conducting  special  election  of   directors 24,  25 

Monied   corporation,   classified 2 

Monied   corporation,  defined 3 

Monument    corporations,    classified 2 

Municipal  corporation,  classified 2 

Municipal  corporations,  exceptions  relative  to 11 

Municipal  corporations,  what  are,  defined :> 

N. 

Name  of  old  corporation,  use  of,  when  allowed 6 

Names  of  corporations,  use  of  same  by,  prohibited 6 

Names  of  corporations,  use  of  same  by  foreign,  prohibited 15 

New  election,  supreme  court  may  order '. 27 

Non-stock  corporation,  classified 2 

Non-stock  corporation,  defined 3 

Non-stock  corporation,  filing  certificate  of 5 

Non-stock  corporation,  limit  of  property  of 12 

Non-stock  corporation,  value  of  property  of,  how  computed 12 

Non-user,  forfeiture  for 31 

Notice  of  special  elections 24 

Notice,  when  unnecessary 38 

o. 

Oath  administered  at  elections,  to  be  filed 22 

Oath   to   proxy ,. 22 

Oath,  when  challenged  at  election 22 

Oath,   who  to   administer   at   elections 22 

"Office  of  corporation,"   defined ;j 

"Office  of  corporation,"   when  located 3 

<  Hiiro  of  foreign  corporation 10 

Officer,  not  to  be  proxy .  .x  21 

<  (flic-era,  right  to  appoint,  etc.,  generally j  1 

P. 

Pending   actions,   not   affected 35 

1'erpetual    succession,    right   of 11 


INDEX. 

SECTION 

Personal   liability   of  trustees  on  dissolution 30 

Pledger  of  stock,  may  vote  it 20 

Powers  of  majority  of  directors '.  29 

Powers  of  supreme  court,  respecting  elections. 27 

Powers  of  trustees  on  dissolution 30 

Powers,  what  included  in  general  grant ,.  . . .  H 

Principal  place  of  business  of  foreign  corporation  to  be  designated 18 

Process  against  foreign  corporation,  person  designated  to  receive  service. .  \Q 

Prohibition  as  to  certain  names,  etc 15 

Prohibition  of  banking  powers ] ') 

Proof  by  foreign  corporation,  for  leave  to  do  business 10 

Property  in  other  states,  right  to  acquire 14- 

Property  of  non-stock  corporation,  limitation  upon 12 

Property,  right  to  hold,  etc 11 

Proxies    . ., 20,  21 

Proxy,    duration    of 21 

Proxy,  form  of   21 

Proxy  is   revocable    21 

Proxy  invalid  after  eleven  months 21 

Proxy,  oath  to   22 

Proxy,  who  to  administer   22 

Proxy,  qualifications  of   21 

Proxy,  when  corporation  may  prescribe  limits  of 21 

Publication  of  by-laws ,  11 

Purchase,  right  of  corporation  to  take  by 11 


Q. 

Qualifications  of  incorporators  ... .  4 

Qualification  of  voters    20 

Qualifications  of  voters  at  special  elections 26 

Quorum,  at  special  elections 25 

Quorum,  by-laws  to  determine 11,  29 

Quorum  of  directors 29 


E. 

Railroad   corporation  classified    »  2 

Real  property,  acquisition  of  additional   13 

Real  property,  acquisition  of  by  foreign  corporation   17,  13 

Recording  certificate  of  incorporation    5 

Regulation  of  corporate  affairs,  by  by-laws  11 

Religious   corporation,   classified    2 

Repeal   of  charter    40 

Repeal  of  laws  and  effect  of   34,  35 

Revival  of  corporate  existence  expired   32 

Revival  of  certain  laws   37 

49 


S. 

SECTION 

Revocation  of  authority  of  foreign  corporation   16 

Right  to  vote,  how  determined   20 

Sale  of  votes  or  proxies  forbidden   . .  .- 20 

"  Savings  "  use  of  word,  when  prohibited 15 

Saving  clause 35 

School  district,  ia  municipal  corporation 3 

Seal,  right  to  have   11 

Secretary  of  State,  certificates  of  incorporation  when  to  be  filed  with .  .  5 
Secretary  of  State  to  issue  authority  for  foreign  corporation  to  do  busi- 
ness     15,  16 

Service  upon  foreign  corporation,  person  to  be  named  by  16 

Shares,  corporation  capital  divided  into,  is  a  stock  corporation ,  3 

Short  title  of  this  act   1 

Soldiers'  monument  corporations  classified   2 

Special   charter,  conflict  with  present  law   33 

Special  charter,  provisions  of,  abrogated  on  renewals 32 

Special  election,  business  to  be  transacted  at 2o 

Special  election  of  directors    24,  25 

Special  election,  canvas  of  votes  at   2(j 

Special  election,  inspectors  to  file  return  etc    26 

Special  election,  notice  of    24 

Special  election,  quorum  at    25 

Special  election,  qualification  of  voters  at 26 

Special   elections,  powers  of  members  at    2-> 

Special  election,  qualification  of  voters  at. 20 

Special  election,  result  how  certified 26 

Statement   by  voters  at  special  elections    23 

Statutory  powers,  only,  to  be  exercised    10 

Stay  of  proceedings  in  actions  collusively  brought   28 

Stock,  amount  of  at  meetings,  by-laws  to  fix 1  ] 

Stock    corporation,    classified    i> 

St  ock   corporation,   defined    3 

Stockholders,  consent  by  to  extension  of  corporate  existence 32 

Stockholders,    rights   to   vote 20 

Stock,  pledger  of,  may  vote  it 20 

Stock,  transfer  of,  by-laws  to  regulate   11 

Succession,   right   of    11 

Suit •*,  by  trustees  on  dissolution   30 

Summary  hearing  of  election  issues   27 

Superintendent  of  Banks,  certain  approvals  by 32 

Superintendent  of  Insurance,  certain  approvals  by  32 

Supplemental  certificates  of  incorporation,  contents  and  effect  of 7 

Supplemental  certificate  of  incorporation,  filing  of   5 

Supreme  court,  may  amend  certificate  of  incorporation    7 

cnie  court,  may  permit  additional   property  to  be  held 13 

Supreme  court,  power  of,  respecting  elections   27 

50 


INDEX. 

T. 

SECTION 

Taxes  for  incorporation  to  be  paid  before  certificate  filed,  etc 6 

Teller,   not  to   be   proxy    21 

Term  of  directors  holding  office 23 

Term  for  which  corporate  existence  may  be  extended  32 

Terms  used  herein,  defined  and  applied   3 

Territorial  division,  when  is  a  municipal  corporation 3 

Time  qualification   of  stock  or  bondholder  to  vote. 20 

Time,  lapse  of,  when  of  no  effect 38 

Title  of  act   1 

Town,  is  municipal  corporation   3 

Transfer  of  stock,  by-laws  to  regulate  11 

Transportation   corporation,  classified    2 

Transportation  corporation,  other  than  railroad,  classified   '2 

"  Trust "   use  of  word,  when  prohibited 15 

Trustees,  directors  as,  on  dissolution   30 

"  Trustees,"  included  under  directors   . .  < k 3 

Trustees  on  dissolution,  personal  liability  of 30 

Trustees,  on  dissolution,  powers  of  30 

V. 

Value  of  corporate  property,  how  determined 12,  13 

Village,  is  municipal  corporation    3 

Void  claim,  action  on,  stay  in   28 

Voters  at  special  elections,  qualifications  of  '16 

Voters,    qualifications   of 20 

Votes,  number  regulated    20 

Votes  or  proxies,  sale  of  forbidden 26 


51 


.  688. 

AN  ACT  to  amend  the  stock  corporation  law. 

APPROVED  by  the  Governor  May  18, 1892.     Passed,  three-fifths  being  present. 

The  People  of  the  State  of  New  York,  represented  in  /Senate  and 
Assembly,  do  enact  as  follows  : 

The  stock  corporation  law  is  amended  to  read  as  follows,  to  tak« 
effect  immediately : 

CHAPTER  XXXVI  OF  THE  GENERAL  LAWS. 

THE   STOCK   CORPORATION   LAW. 

AUTICLB  1.  General  powers  ;  reorganization  (§§  1-7). 

2.  Directors  and  officers ;  their  election,  duties  and  liabilties  ($}  20-39). 

3.  Stock ;  stockholders,  their  rights  and  liabilities  (J§  40-55). 

ARTICLE  I. 

GENERAL   POWERS;    REORGANIZATION. 

BBOTION  1.  Short  title,  and  application  of  chapter. 

2.  Power  to  borrow  money  and  mortgage  property. 

3.  Reorganization  upon  sale  of  corporate  property  and  franchise*. 

4.  Contents  of  plan  or  agreement. 

5.  Sale  of  property ;  possession  of  receiver  and  suits  against  him. 

6.  Assent  of  stockholders  to  plan  of  readj  ustment. 

7.  Combinations  prohibited. 

8.  Execution  of  mortgage. 

SECTION  1.  Short  title  and  application  of  chapter. — This 
chapter  shall  be  known  as  the  stock  corporation  law,  but  article  one 
shall  not  apply  to  monied  corporations. 

5"ormer  section  1  amended. 

§  2.   Power  to  borrow  money  and  mortgage   property. — In 

addition  to^the  powers  conferred  by  the  general  corporation  law,  every 
stock  corporation  shall  have  the  pow«r  to  borrow  money  and  contract 
debts  when  necessary  for  the  transaction  of  its  business,  or  for  the  ex- 
ercise of  its  corporate  rights,  privileges  or  franchises,  or  for  any  other 
lawful  purpose  of  its  incorporation ;  and  it  may  issue  and  dispose  of 
its  obligations  for  any  amount  so  borrowed,  and  may  mortgage  its 
property  and  franchises  to  secure  the  payment  of  such  obligations, 
or  of  any  debt  contracted  for  said  purposes.  Every  such  mortgage, 
except  purchase  money  mortgages  and  mortgages  authorized  by 
contracts  made  prior  to  May  first,  eighteen  hundred  and  ninety-one* 
shall  be  consented  to  by  the  holders  of  not  less  than  two- thirds  of 


STOCK  CORPORATION  LAW. 

the  capital  stock  of  the  corporation,  which  consent  shall  be  given  either  in 
writing  or  by  vote  at  a  special  meeting  of  the  stockholders  called  for  that 
purpose,  upon  the  same  notice  as  that  required  for  the  annual  meetings  of  the 
corporation;  and  a  certificate  under  the  seal  of  the  corporation  that  such 
consent  was  given  by  the  stockholders  in  writing,  or  that  it  was  given  by 
vote  at  a  meeting  as  aforesaid,  shall  be  subscribed  and  acknowledged  by  the 
president  or  a  vice-president  and  by  the  secretary  or  an  assistant  secretary, 
of  the  corporation,  and  shall  be  filed  and  recorded  in  the  office  of  the  clerk 
or  register  of  the  county  wherein  the  corporation  has  its  principal  place  of 
business.  When  authorized  by  like  consent,  the  directors  under  such  regula- 
tions as  they  may  adopt,  may  confer  on  the  holder  of  any  debt  or  obligation 
whether  secured  or  unsecured  evidenced  by  bonds  of  the  corporation  the  right 
to  convert  the  principal  thereof,  after  two  and  not  more  than  twelve  years 
from  the  date  of  such  bonds,  into  stock  of  .the  corporation;  and  if  the  capital 
stock  shall  not  be  sufficient  to  meet  the  conversion  when  made,  the  directors 
shall  from  time  to  time,  authorize  an  increase  of  capital  stock  sufficient  for 
that  purpose  by  causing  to  be  filed  in  the  office  of  the  secretary  of  state,  and 
a  duplicate  thereof  in  the  office  of  the  clerk  of  the  county  where  the  prin- 
cipal place  of  business  of  the  corporation  shall  be  located,  a  certificate  under 
the  seal  of  the  corporation,  subscribed  and  acknowledged  by  the  president  and 
secretary  of  the  corporation  setting  forth, 

1.  A  copy  of  such  mortgage;  or  resolution  of  directors  authorizing  the  issue 
of  such  bonds. 

2.  That  the  holders  of  not  less  than  two-thirds  of  the  capital  stock  of  the 
corporation  duly  consented  to  the  execution  of  such  mortgage  or  resolution  of 
directors  authorizing  the  issue  of  such  bonds  by  such  corporation; 

3.  A  copy  of  the  resolution  of  the  directors  of  the  corporation  authorizing 
the  increase  of  the  capital  stock  of  the  corporation  necessary  for  the  purpose 
of  such  conversion; 

4.  The    amount    of    capital  theretofore  authorized,    the    proportion    thereof 
actually  issued  and  the  amount  of  the  increased  capital  stock; 

If  the  corporation  be  a  railroad  corporation  the  certificate  shall  have  en- 
dorsed thereon  the  approval  of  the  board  of  railroad  commissioners.  When 
the  certificate  herein  provided  for  has  been  filed,  the  capital  stock  of  such  cor- 
poration shall  be  increased  to  the  amount  specified  in  such  certificate. 

Amended  by  ch.  354  of  1901.     In  effect  April  16,  1901. 

Amended  by  ch.  745  of  1905. 

Former  section  2  amended. 

8«e  chap.  213  of  1822,  section  2  ;  chap.  517  of  1864,  section  2 ;  chap.  481  of  1871, 
•action  13;  chap.  611  of  1875,  section  1;  chap.  163  of  1878,  and  section  1,  chap. 
394  of  1888,  all  now  repealed. 

For  proceedings  to  sell,  mortgage  or  lease  real  estate,  see  title  2,  chap.  95  of 
1890. 

The  right  to  assent  to  mortgaging  the  property  of  a  corporation  is  collective,  tr 
be  exercised  in  common  with  other  shareholders  and  in  the  mode  prescribed  by 
the  statute  or  by  the  articles  of  association.  Campbell  v.  American  Zylonite  Co.. 
122  N.  Y.,  456.  . 

It  is  at  least  doubtful  whether  any  but  stockholders  can  complain  that  the  assent 
was  not  given  and  filed  in  pursuance  of  this  section.  Paulding  v.  Chrome  Steel 
Co..  94  N.  Y.,  334  ;  Greenpoint  S.  Co.  v.  Whitin,  69  id.,  328. 

Tb«  assent,  required  by  this  section,  is  exacted  for  the  benefit  and  protection  of 
>rtor.kholder8  against  improvident  and  corrupt  acts  of  the  officers  of  the  corpora- 
tion. Paulding  v.  Chrome  Steel  Co.,  ante. 

The  legislature,  in  such  enactment,  did  not  regard  the  mortgagingjof  corporative 
property  as  improper  per  *«.  Id. 

The  owners  of  corporate  stock,  by  force  of  their  ownership,  may  put  a  mortgage 
upon  the  corporate  property  when  the  statute  permits.  People  v.  North  R.  8.  R. 
Co.,  121  N.  Y..  582. 

A  corporation,  without  anmft  statute  allowing1  it,  can  neither  sell  nor  mortgage  its 
franchises.  Carpenter  v  Bla<-k  Hawk  Gold  Mining  Co.,  65  N.  Y.,  «  ;  Hnsq.  Can. 
Co.  ».  Bonham,  9  Watts  &  S..  27  ;  Arthur  v.  Com  and  R.  R.  Bk..  9  SmedesfcM.. 
394  ;  New  Orleans,  etc..  R.  R.  Co.,  27  Miss.,  517  ;  Stewart  V.  Jones,  40  Mo.,  140.  '" 

A  corporation,  organized  under  this  act,  may.  upon  filing  the  requisite  assent  of 
two-thirda  of  its  Blor.khoMers,  mortgage  its  real  estate  to  secure  the  payment  of 
Itn  debts,  but  not  to  raise  money  to  carry  on  its  operations.  I<1  ;  Rochester  Sav. 
Bk.  v.  Averill,  26  Hun,  643. 

A  mortgage  is  not  invalid  because  it  purports  to  mortgage  the  franchises  of  the 
company  and  ita  personal  property,  as  well  as  its  real  estate.  Carpenter  v.  Black 
Hawk  Gold  Mining  Co.,  ante.  So  far  aa  it  purports  to  convey  the  franchises  of 
the  company,  it  ia  simply  Inoperative.  Id.  Power  to  mortgage  ita  personal 
WM  conferred  by  chap.  481  of  1871,  and  ita  franchises  by  chap.  163  of 


STOCK  CORPORATION  LAW. 

The  statute  prescribes  no  form  for  such  mortgage,  and  there  is  no  rule  of  Uw 
which  requires  a  mortgage  upon  real  estate  to  be  in  any  particular  form.  Id.  In 
this  case,  the  instrument  was  in  the  form  of  a  deed  in  trust,  with  power  of  sale  in 
case  of  default  in  payment  of  the  indebtedness  secured.  Id. 

There  is  nothing  in  the  statute  which  limits  the  effect  of  the  mortgage  to  the 
present  real  estate  of  the  company,  and  nothing  in  the  nature  of  a  mortgage 
security  which  can  thus  limit  its  effect.  Id.  ;  Seymour  v.  C.  &  N.  F.  R.  R.  Co., 
25  Barb.,  284  ;  Fisk  v.  Patter,  2  Abb.  Ap.  Dec.,  138. 

A  separate  mortgage  need  not  be  executed  by  the  corportion  to  each  creditor  to 
secure  his  debt.  Carpenter  v.  Black  Hawk  G.  M.  Co.,  ante.  A  single  mortgage 
to  one  or  more  persons,  though  not  creditors,  in  trust  for  the  security  of  all  the 
creditors,  will  accomplish  the  purpose  of  the  statute.  Id.  ;  De  Ruyter  v.  St. 
Peter's  Church,  3  N.  Y.,  238  ;  King  v.  Merch.  Ex.  Co.  v.  5  id.,  547;  Bucklin  ». 
Bucklin,  1  Abb.  Ap.  Dec.,  242;  Rochester  Sav.  Bk.  v.  Averell,  96  N.  Y.,  487; 
aff  'g  26  Hun,  643. 

A  loan  of  money  to  pay  the  debts  of  a  corporation,  where  the  money  is  so  ap- 
plied, is  a  debt  contracted  in  the  business  for  which  the  corporation  was  organized 
within  the  meaning  of  the  atatute,  and  may  be  secured  by  mortgage.  Rochester 
Sav.  Bk.  v.  Averell,  ante  ;  aff  'g  26  Hun,  643. 

The  written  assent  of  stockholders  owning  two-thirds  of  the  capital  stock  to  the 
mortgaging  of  the  corporate  property,  is  an  indispensable  condition  of  the  creation 
of  a  valid  mortgage.  Id.  ;  aff 'g  26  Hun,  643  ;  Vail  v.  Hamilton,  85  N.  Y.,  453. 

But  a  mortgage,  executed  without  such  assent,  is  validated  by  a  subsequent 
assent,  where  there  are  no  intervening  rights.  Id.  Such  assent  make  it,  aa  of  tht 
time  it  is  given,  a  valid  mortgage.  Id.  ;  Martin  v.  N.  F.  P.  Mfg.  Co.,  122  N.  Y., 
165. 

The  filing  of  the  assent  in  the  office  of  the  clerk  of  the  county,  where  the  mort- 
gaged property  is  situated,  is  not  an  indispensable  condition  to  the  yalidity  of  the 
mortgage.  Rochester  Sav.  Bk.  v.  Averell,  ante  ;  aff  'g  26  Hun,  643.  Without  such 
filing,  the  mortgage  is  valid  as  against  a  subsequent  mortgagee  or  purchaser,  with 
notice.  Id. 

Whether  any  person,  who  is  not  a  stockholder,  can  interpose  the  objection  of 
•want  of  a  sufficient  assent,  is  questionable.  Greenpoint  8.  Co.  v.  Whitin,  69  N.  Y., 
328  ;  aff'g  7  Hun,  44. 

A  mortgage,  though  recorded  prior  to  the  filing  of  an  assent,  is  valid  from  the 
time  of  such  filing.  Id.  ;  aff'g  7  Hun,  44. 

For  the  purposes  of  such  assent,  the  amount  actually  issued  and  owned  should 
be  regarded  as  the  amount  of  the  capital  stock.  This  power  of  assent  is  conferred 
upon  those  who  represent  two-thirds  of  the  actual  stock.  Id. 

The  statute  does  not  prescribe  any  particular  form  of  assent,  nor  what  it  shall 
specify  or  contain.  It  only  requires  an  assent  in  writing.  Id. 

The  proviso  was  not  enacted  because  the  mortgaging  of  corporate  property  WM 
regarded  as  improper  per  se.  Id. 

The  question,  whether  any  assent  is  necessary  under  the  act  of  1864,  where  a 
mortgage  was  given  for  the  purchase-  money  of  the  mortgaged  premises,  or  for  a 
debt  in  the  nature  of  purchase- money,  was  not  passed  upon  in  any  case  decided 
under  s»ch  act ;  but  the  present  act,  in  express  terms,  makes  such  assent  m- 
necessary  in  case  of  purchase-money  mortgages. 

A  defect  in  an  assent,  in  order  to  invalidate  a  mortgage  given  under  it,  in  th« 
absence  of  fraud,  or  of  any  objection  on  the  part  of  the  stockholders,  must  be  of  so 
substantial  and  radical  a  character  that  an  intention  to  consent  can  not  be  inferred 
from  the  instrument.  Greenpoint  Sugar  Co.  v  Whitin,  ante.  The  assent  in  this 
case,  though  very  deficient,  was  held  to  be  sufficient. 

The  power  to  alien  and  mortgage  lands  in  the  course  of  its  business,  inhered,  by 
the  common  law,  in  a  corporation  capable  of  acquiring  and  holding  them,  as  hi 
natural  persons,  as  an  incident  of  ownership.  Rochester  Sav.  Bk.  v.  Averell,  anh; 
aff'g  26  Hun,  643  ;  Curtis  v.  Leavitt,  15  N.  Y.,  9  ;  Barry  v.  Mer.  Ex.  Co.,  1  Sandf 
Ch.,  280. 

The  legislature,  in  creating  corporations,  may,  as  it  sees  fit,  grant  or  withhold 
such  powers.  Id.  The  act  of  1848  created,  in  this  respect,  a  disability  not  existing 
at  common  law,  and  the  prohibition  therein  was  absolute  and  unqualified.  The 
act  of  1864  did  not  in  terms  repeal  the  prohibition  in  the  original  aet,  but  was  a 
new  provision  containing  permission  to  mortgage  for  the  special  purposes,  and 
under  the  proviso,  therein  mentioned. 


STOCK  CORPORATION  LAW. 

The  present  act  embodies  such  permission  and  provision,  with  certain  qualifica- 
tions. See  Welch  v.  G.  &  T.  N.  Bank.,  122  N.  Y.,  177;  Lord  t>.  Yonkere  F.  G. 
Go.,  98  id.,  547. 

The  object  of  the  legislature  in  requiring  such  assent,  was  the  protection  of 
stockholders  against  improvident,  collusive  or  unwise  acts  of  the  trustees  in 
encumbering  the  corporate  property.  Id.;  Greenpoint  S.  Co.  v.  Whitin,  ante; 
and  not  the  protection  of  creditors  or  subsequent  encumbrancers.  Id.  The  filing 
of  the  assent  is  unnecessary  for  the  latter  purpose.  Id.  The  record  of  the  mort- 
gage is  constructive  notice  of  the  lien.  Id.  See  Lord  v.  Yonkers  F.  G.  Co.,  99  N. 
Y.,  547;  Welch  *.  I.  &  F.  N.  Bk.,  122  N.  Y.,  177. 

After  judgment  of  foreclosure  has  been  obtained  upon  a  mortgage  executed  by  a 
corporation,  it  is  to  be  presumed  in  the  absence  of  proof,  that  the  required  assent 
was  procured  and  filed.  Denike  y.  N.  Y.  &  R.  L.,  etc.,  Co.,  ante.  Such  judg- 
ment, unless  impeached,  is  conclusive  against  the  corporation  and  its  stockholders 
as  to  the  validity  of  the  mortgage.  Id.  The  burden  of  impeaching  it  is  upon  the 
stockholders.  Id.  They  must  establish  that  the  mortgage  was  not  given  to 
secure  a  debt  of  the  company,  nor  that  the  money  obtained  was  used  to  pay 
debts.  Id. 

With  the  prescribed  assent  of  the  stockholders,  corporations  are  as  competent  as 
natural  persons  to  secure  the  payment  of  their  legitimate  debts  by  mortgage  upon 
their  real  or  personal  property.  Lord  v.  Yonkers  F.  G.  Co.,  ante. 

There  is  nothing  in  the  statute  which  requires  that  the  debt  to  be  secured  should 
have  been  contracted  at  any  particular  time.  Id.  If  it  is  contracted  simultane- 
ously with  the  giving  of  the  security,  and  is  a  legitimate  debt  incurred  in  the 
business  of  the  company,  it  comes  within  the  letter  of  the  authority  conferred  by 
the  statute.  Id.  It  is  immaterial  whether  the  money  is  applied  by  the  borrower 
to  the  payment  of  some  antecedent  debt,  or  to  some  other  purposes  for  which  it  is 
legitimately  entitled  to  borrow  money.  Id.  A  mortgage  given  to  secure  future 
advances  raises  a  different  question. 

A  consent  to  mortgage  the  real  and  personal  estate,  does  not  authorize  a  mort- 
gage of  the  corporate  franchises.  Id. 

Where  a  trust  mortgage  is  given  by  a  corporation  to  secure  the  payment  of  its 
negotiable  bonds  to  be  thereafter  issued,  the  debts  authorized  to  be  secured  need 
not  be  in  existence  at  the  time  of  the  execution  of  the  mortgage  and  bonds ;  it  is 
sufficient  if  the  bonds  are  negotiated  only  for  the  purpose  of  securing  or  paying 
debts  contracted  before  the  negotiation.  Id. 

Such  corporation  can  give  mortgages  to  secure  debts  contracted  only  in  carry- 
ing on  the  operations  named  in  its  certificate  of  incorporation.  Astor  v.  West- 
Chester  G.  L.  Co.,  33  Hun,  333. 

A  corporation,  formed  under  this  act,  has  power  to  give  a  mortgage  for  future 
advances.  Martin  v.  Niagara  F.  P.  Mfg.  Co.,  44  Hun,  130;  Jones  v.  G.  &  I.  Co., 
101  U.  S.,  622  ;  Union  Nat.  Bk.  v.  Matthews,  8  Otto,  621 ;  8.  c.,  19  Alb.  L.  J.,  132; 
Central  G.  M.  Co.  •».  Platt,  3  Daly,  268. 

The  franchises,  privileges,  rights  and  liberties,  which  are  not  included  in  a  con- 
sent to  mortgage  the  real  and  personal  estate  of  the  corporation,  are  the  corporate 
rights  and  franchises  which  become  vested  in  the  company  by  virtue  of  its  organi- 
sation aa  a  corporation.  Lord  v.  Yonkers  F.  G.  Co.,  101  N.  Y.,  614.  Patent 
rights,  licenses,  easements  or  privileges,  acquired  by  the  company  since  its 
incorporation,  either  from  individuals  or  other  corporations,  are  in  the  nature  of 
property,  and  included  in  a  consent  to  mortgage  the  corporate  property.  Id.; 
Bridgeport  v.  N.  Y.  &  N.  H.  R.  R.  Co.,  36  Conn.,  255 1  Chicago  R.  R.  Co.  «. 
People,  73  111.,  541 ;  Morgan  v.  Louisiana,  3  Otto,  223. 

A  corporation  is  empowered  to  mortgage  its  real  estate  to  secure  a  debt  con- 
tracted by  it  in  the  business  for  which  it  was  incorporated.  Martin  v.  N.  F.  P. 
Mfg.  Co.,  122  N.  Y.,  165 ;  33  N.  Y.  St.  Rep.,  318. 

Assent  given  before  execution  of  mortgage  by  manufacturing  company,  where 
no  rights  of  creditors  intervene,  is  sufficient  compliance  with  statute  to  make 
mortgage  valid  as  against  company  and  its  stockholders.  Id. 

A  mortgage  executed  pursuant  to  a  resolution  of  directors,  who  are  not  share* 
holders,  is  not,  for  this  reason,  void.  Welch  v.  1.  &  T.  N.  Bk.,  122  N.  T.,  177;' 
13  N.  Y.  St.  Rep.,  452. 

Where  the  written  assent  of  all  the  shareholders  is  signed  the  day  before  the 
mortgage  is  executed,  it  is,  as  between  the  assignee  of  the  mortgage  and  the 
receiver  of  the  corporation,  a  sufficient  compliance  with  the  statute  to  file  the 


STOCK  CORPORATION  LAW. 

ant  simultaneously  with  the  filing  of  the  mortgage  for  record.  Welch  t>.  1 .  A 
T.  N.  Bk.,  ante;  Rochester  Sav.  Bk.  v.  Averell,  ante. 

The  security  is  not  invalid  for  the  reason  that  there  were  but  two  shareholders 
when  the  assent  was  signed.  Welch  v.  I.  &  T.  Nat.  Bk.,  ante;  nor  by  reason  that 
there  were  but  two  persons  legally  qualified  to  act  as  trustees  when  its  execution 
was  directed.  Id. ;  Castle  v.  Lewis,  78  N.  Y.,  131 ;  Altas  N.  Bk.  t>.  F.  B.  Q.  Co., 
8  Biss.,  637 ;  Russell  v.  McLellan,  14  Pick.,  63. 

The  assent  of  the  holders  of  two-thirds  of  the  stock  actually  issued  IB  sufficient 
to  authorize  the  making  of  a  mortgage  by  the  corporation,  so  long  aa  there  is  no 
fixed,  definite  intention  to  increase  the  stock  by  future  issues.  Lyceum  v.  Ellis, 
57  Super.,  532  ;  30  N.  Y.  St.  Rep.,  242.  The  fact  that  some  of  the  stock  has  not 
been  paid  for  in  full  does  not  affect  the  validity  of  the  assent.  Id.  Neither  the 
issuing  of  a  certificate  for  the  shares  nor  payment  therefor  is  indispensable  to  th» 
ownership  in  shares  in  capital  stock.  Id.  ;  Wheeler  t>.  Millar,  90  N.  Y.,  389. 

A  corporation  may  mortgage  its  property  and  dispose  of  its  bonds  to  raise  money 
to  be  thereafter  expended  in  carrying  on  its  business,  though  for  indebtedness  not 
already  incurred.  Graham  v.  Al tan ta  Hill,  etc.,  Co.  N.  Y.  Daily  Reg.,  Oct.  14, 
1884. 

The  fact  that  the  consent  does  not  specify  the  amount,  that  the  mortgage  IB 
valid  only  in  the  county  where  most,  if  not  all  of  the  property  is  situated,  that  it 
is  given  to  trustees  and  not  to  the  creditors  directly,  or  that  the  bonds  are  sold 
below  par  if  not  below  actual  value,  does  not  render  the  mortgage  void.  Id.; 
Jones  v.  Q.  &  I.  Co.,  101  U.  8.,  622;  Central  G.  M.  Co.  v.  Platt,  3  Daly,  263; 
Greenpoint  8.  Co.  v.  Whitin,  69  N.  Y.,  334. 

Where  the  corporation  has  transferred  by  assignment,  absolute  on  its  face,  certi- 
ficates of  stock  so  owned  by  it,  as  collateral  security  for  debt,  the  shares  so  trans- 
ferred at  least  can  not  be  deducted.  Vail  v.  Hamilton,  83  N.  Y.,  453. 

Where  the  corporation  is  itself  the  owner  of  a  portion  of  its  stock,  it  can  not  give 
assent  for  the  shares  so  owned  by  it,  to  make  up  the  requisite  two-thirds.  Id. 
Nor  can  the  assenting  stockholders  be  deemed  to  represent  a  proportionate  amount 
owned  by  the  corporation.  Id. 

Whether  the  shares  held  by  the  corporation  may  be  deducted  from  the  whol« 
number  in  ascertaining  if  the  assent  of  the  requisite  two-thirds  has  been  obtained, 
was  not  determined  in  Vail  v.  Hamilton,  ante. 

The  assignee  of  stock,  assigned  by  corporation  aa  collateral  security  for  debt,  U, 
U  seems,  a  stockholder  withia  the  meaning  of  this  section  and  is  entitled  to  sign 
the  assent.  Id. 

A  receiver  of  a  corporation  may  maintain  an  action  to  set  aside  »  mortgage 
executed  by  it  without  the  requisite  assent  of  stockholders.  Id. 

Creditor  has  no  title  in  law  or  equity  to  bonds  issued  by  corporation  in  trust  to 
pay  its  debts,  nor  right  in  proceeds  of  sale  under  mortgage  given  to  secure  such 
bonds,  until  delivery  and  acceptance.  Hubbell  v.  S.  I.  Works,  36  N.  Y.  St.  Rep., 
902. 

Consent  of  stockholders  to  execution  of  mortgage  by  corporation,  is  sufficient,  if 
signed,  acknowledged  and  recorded  with  mortgage.  Everson  v.  Eddy,  36  N.  Y. 
St.  Rep.,  763. 

Such  mortgage  is  valid  where  corporation  is  solvent.     Id. 

Fact  that  resolution  authorizing  execution  of  mortgage  by  corporation  was 
adopted  by  votes  of  persons  owning  indebtedness  to  be  secured,  does  not  affect 
validity  of  mortgage,  where  it  is  valid  indebtedness  incurred  for  corporation.  Rit- 
tenhouse  v.  Winch,  32  N.  Y.  St.  Rep.,  506. 

§  3.  Reorganization  upon  sale  of  corporate  property 
and  franchises.  —  When  the  property  and  franchises  of  any 
domestic  stock  corporation  shall  be  sold  by  virtue  of  a  mortgage 
or  deed  of  trust,  duly  executed  by  it,  or  pursuant  to  the  judg- 
"ment  or  decree  of  a  court  of  competent  jurisdiction,  or  by 
virtue  of  any  execution  issued  thereon,  and  the  purchaser,  his 
assignee  or  grantee  shall  have  acquired  title  to  the  same  in  the 
manner  prescribed  by  law,  he  may  associate  with  him  any  number  of 
persons,  not  less  than  the  number  required  by  law  for  an  incorporation 

5 


STOCK  CORPORATION  LAW. 

for  similar  purposes  at  least  two-thirds  of  whom  shall  be  citizens  of 
the  Ui:iteil  States  and  one  shall  be  a  resident  of  this  state,  and  they 
rnav  income  a  corporation  and  take  and  possess  the  property  and 
franciii-es  thus  sold,  and  which  were  at  the  time  of  the  sale  possessed 
by  the  corporation  whose  property  shall  have  been  so  sold,  upon 
making  nnu  acknowledging  and  filing  in  the  offices  where  certificates 
of  incorporation  are  required  by  law  to  be  filed;  a  certificate  in 
which  thev  shall  describe  by  name  and  reference  to  the  law  under 
which  it  was  organized,  the  corporation  whose  property  and  franchises 
they  have  acquired,  and  the  c^urt  by  whose  authority  the  sale  had 
been  made,  with  the  date  of  the  judgment  or  decree  authorizing  or 
directing  the  same,  and  a  brief  description  of  the  property  sold,  and 
also  the  following  particulars: 

1.  The  name  of  the  new  corporation  intended  to  be  formed  by  the 
filing  of  such  certificate ;  and  the  place  where  its  principal  office  is 
to  be  located. 

2.  The  maximum  amount  of  its  capital  stock  and  the  number  of 
shares  into  which  it  is  to  be  divided,  specifying  the  classes  thereof, 
whether  common  or  preferred,  and  the  amount  of,  and  rights  pertain- 
ing to,  each  class. 

3.  The  number  of  directors,  not  less  nor  more  than  the  number 
required  by  law  for  the  old  corporation,  who  shall  manage  the  affairs 
of  the  new   corporation,  and  the  names  and  post-office  address  of 
the  directors  for  the  first  year. 

They  may  insert  in  such  certificate  any  provisions  relating  to  the  new  corpora 
tion,  or  its  management,  contained  in  any  plan  or  agreement  which  may  have 
been  entered  into  as  provide  1  in  section  four  of  this  chapter.     Such  corporation, 
shall  be  vested  with,  and  be  entitled   to  exercise  and  enjoy,  all  the  rights,  privi- 
leges and  franchises,  which  at  the  time  of  such  sale  belong  to,  or  were  vested  in 
the  corporation,  last  owning  the  property  sold,  or  its  receiver,  and  shall  be  sub- 
ject to  all  the  provisions,  duties  and  liabilities  imposed  by  law  on  that  corpo- 
ration.    Any  proceedings  heretofore  taken  in  substantial  compliance  with  this 
•ection  as  hereby  amended  and  any  and  all  incorporations  based  thereon  are 
hereby  ratified  and  confirmed. 

Amended  by  ch.  354  of  1901.     In  effect  April  16,  1901. 

Amended  by  ch.  706  of  1904. 

Former  section  3  without  change. 

See  chap.  469  of  1873,  section  1;  chap.  430  of  1874,  section  1;  chap.  446  of  1876, 
and  section  1,  chap  193  of  1890,  now  repealed. 

Amended  by  ch.  80  of  1902.     In  effect  March  5,  1902. 

The  amendment  of  1902  made  this  section  applicable  to  the  assignee  or  grantee, 
of  the  purchaser,  at  the  sale  of  corporate  property  and  also  added  the  ratification 
at  the  end  of  the  section. 

Thia  course  of  procedure  was  formerly  applicable  only  to  railroad  companies, 
but  has  been,  by  these  sections,  extended  to  all  stock  corporations. 

Under  this  section,  any  number  of  persons  may,  at  a  foreclosure  sale,  purchase 
the  corporate  property  for  themselves,  and  organize  a  new  company,  which  will 
•ss  all  the  powers,  rights,  privileges  Mini  franchises  of  the  prior  corporation, 
and  be  subject  to  the  provisions,  duties  and  liabilities  imposed  by  law  on  each 
corporations.  Vatable  71.  N.  Y.,  L.  E  &  W  R  R.  Co..  9(5  N.  Y.,  49.  In  such  case, 
the  rights  of  all  the  stockholders  of  the  prior  corporation  will  be  absolutely  tarred 
and  cut  off  by  the  foreclosure  and  sale.  Id. 

The  pmv.h.'iscrs  ,-u  the  foivdosnre  sale  may.  instead  of  buying  absolutely  for 
tbemattiVfg,  Iniy  thi-  property  in  pursuance  of  a  plan,  as  mentioned  in  the  next 
section,  for  the  ivnl  ustraent  of  the  respective  interests  therein  of  the  mortpag-e- 
iors  and  stockholders  of  the  company.  Id.  Even  in  this  case,  the  fore- 
closure become^  absolute  against  the  corporation,  and  absolutely  bars  and  cuts  off 
all  its  ri^ht-s  and  all  the  proprietary  interests  of  the  stockholders.  Id.  If  the 
property  is  purchased  under  the  plan  provided  in  the  next  section,  such  plan  mint 

6 


'  CORPORATION  LAW. 

be  embodied  in  the  certificate  to  be  tiled  as  required  by  this  section.  Id.  In  such 
case,  each  stockholder  haa  the  right,  under  section  6  of  this  act,  to  assent  to  the 
plan  of  readjustment  and  reorganization  at  any  time  within  six  months  after  the 
organization  of  the  new  company,  and  become,  by  complying  with  the  terms  aud 
conditions  of  such  plan.,  entitled  to  his  pro  rata  benefits  therein  according  to  it* 
terms.  Id. 

The  only  property  interest  which  a  stockholder  of  the  old  company  has  left  is  in 
the  surplus,  if  any,  after  satisfying-  the  mortgage  and  other  preferential  claims.  Id. 

A.  corporation,  organized  under  this  section,  is  a  new  and  entirely  different  one 
fi-om  that  whose  property  and  franchises  were  purchased  under  the  foreclosure 
proceedings.  People  ex  rel.  Schurz  v  Cook,  110  N.  Y.,  443.  The  right  U.  Us  a 
corporation  is  not  mortgaged  or  purchased,  and  is/Only  obtained  by  lh<-  purchasers 
by  direct  grant  from  the  state,  on  filing  the  ertificate.  Id. 

When  the  purchasers  at  the  foreclosure  pale  undertake  to  recognize  under  this 
section,  and  for  that  purpose  to  file  in  the  secretary's  office  a  cerlilicatc,  upon  the 
filing  of  which  they  become  a  body  politic  and  corporate,  the  corporation  thus 
formed  is  a  new  and  entirely  different  one  from  that  whose  property  and  franchises 
the  purchasers  may  have  bought  under  the  foreclosure  proceedings.  Id.  The 
corporation  about  to  be  formed  by  the  filing  of  the  certificate,  has,  by  force  of  the 
statute,  when  formed,  all  the  rights,  franchises,  powers,  privileges  and  immunities 
which  were  possessed  before  such  sale  by  the  corporation  whose  property  was 
sold.  Id.  The  purchasers  obtain  the  -right  to  be  a  corporation  by  direct  grant 
from  the  state,  and  not  in  any  degree  by  the  sale  and  purchase  of  the  franchises, 
etc..  of  the  old  corporation.  Id.  See  Post  v.  Simmons,  16  N.  Y.  St.  Rep.,  246. 

The  act  authorizing  the  mortgaging  of  the  franchises  of  corporations  is  in  DO 
sense  a  contract,  on  the  part  of  the  state,  with  the  purchasers  of  bonds  secured  by 
sunh  a  mortgage,  that  the  statutory  provisions  existing  at  the  time  of  the  execu- 
tion of  the  mortgage  for  the  incorporation  of  the  purchasers  on  foi-eclosure  sale 
shall  remain  the  same.  People  ex  rel.  Schurz  v.  Cook,  ante. 

Whore  the  property  and  franchises  of  a  corporation  have  been  sold  under  mort- 
gage foreloaure,  and  a  new  corporation  has  been  organized  under  this  section, 
chap.  148  of  1886,  as  amended  in  1887,  applies  to  such  new  corporation.  Id.  ID 
such  cose,  the  Secretary  of  State  is  prohibited  from  filing  any  certificate  of  its  arti- 
cles of  association  until  satisfied  that  the  tax  imposed  by  said  act  haa  been  paid  j 
Id ;  even  though  the  mortgage  foreclosed  was  executed  prior  to  the  passage  of  the 
corporation  tax  act.  Id. 

In  the  absence  of  an  existing  corporation,  capable  of  taking  and  exercising  the 
franchises  sold,  the  purchaser  is  authorized  to  create  a  new  corporation  for  the 
purpose  of  the  transfer,  but  whose  corporate  life  comes  from  the  grant  and 
authority  of  the  state.  People  -o.  Brooklyn,  etc.,  R.  Co.,  89  N.  Y.,  84.  This  pro- 
vision was  not  intended  to  prevent  a  sale  or  transfer  to  a  corporation  already  exist- 
ing, and  capable,  under  the  law  of  its  creation,  of  holding  the  property  and  exercis- 
ing the  franchises  which  passed  to  the  purchaser  by  the  mortgage  sale.  Id. 

See  also  Pratt  v.  Munson,  84  N.  Y.,  582. 

The  company  formed  under  this  section  is  a  new  corporation  within  the  mean- 
ing of  the  Organization  Tax  act  of  1886,  as  amended  in  1887.  People  ex.  rel. 
Martins  v.  Cook,  10  N.  Y.  St.  Rep.,  650.  And  it  is  subject  to  the  payment  of  the 
tax  impose  1  by  said  act.  Id. 

In  action  to  foreclose  mortgage  presumption  ia  that  holders  are  bona  fide  owners 
and  burden  of  showing  want  of  consideration  is  upon  defendant.  Atlantic  Trust 
Co.  v.  Crystal  Water  Co.,  72  App.  Div.,  539.  See  also  A.  T.  Co.  v.  N.  Y.  C. 
Suburban  Water  Co.,  75  App.  Div.,  354.  Defense  of  ultra  vires  must  be  pleaded. 
Hess  v.  W.  &  J.  Sloane,  66  App.  Div.,  522. 

§  4.  Contents  of  plan  or  agreement — At  or  previous  to  the  sale 
the  purchasers  thereat,  or  the  person  for  whom  the  purchase  is  to 
be  made,  may  enter  into  a  plan  or  agreement,  for  or  in  anticipa- 
tion of  the  readjustment  of  the  respective  interests  therein  of  any 
creditors,  mortgagees  and  stockholders,  or  any  of  them,  of  the  cor- 
poration owning  such  property  and  franchises  at  the  time  of  sale, 
and  for  the  representation  of  such  interests  in  the  bonds  or  stock  of 
the  new  corporation  to  be  formed,  and  may  therein  regulate  voting 
by  the  holders  of  the  preferred  and  common  stock  at  any  meeting  of 
the  stockholders,  and  may  provide  for,  and  regulate  voting  by  the 

7 


STOCK  CORPORATION  LAW. 

belders,  and  owners  of  any  or  all  of  the  bonds  of  the  corporation, 
foreclosed,  or  of  the  bonds  issued  or  to  be  issued  by  the  new  corpora- 
tion ;  and  such  right  of  voting  by  bondholders  shall  be  exercised  in 
such  manner,  for  such  period,  and  upon  such  conditions,  as  shall  be 
therein  described.  Such  plan  or  agreement  must  not  be  inconsistent 
with  the  laws  of  the  state  and  shall  be  binding  upon  the  corporation, 
until  changed  as  therein  provided,  or  as  otherwise  provided  by  law. 
The  new  corporation  when  duly  organized,  pursuant  to  such  plan 
or  agreement  <and  to  the  provisions  of  law,  may  issue  its  bonds  and 
stock  in  conformity  with  the  provisions  of  such  plan  or  agreement, 
and  may  at  any  time  within  six  months  after  its  organization,  com- 
promise, settle  or  assume  the  payment  of  any  debt,  claim  or  liability 
of  the  former  corporation  upon  such  terms  as  may  be  lawfully 
approved  by  a  majority  of  the  agents  or  trustees  intrusted  with  the 
carrying  out  of  the  plan  or  agreement  of  reorganization,  and  may 
establish  preferences  in  favor  of  any  portion  of  its  capital  stock  and 
may  divide  its  stock  into  classes ;  but  the  capital  stock  of  the  new 
corporation  shall  not  exceed  in  the  aggregate,  the  maximum  amount 
of  stock  mentioned  in  the  certificate  of  incorporation. 

Amended  by  ch.  354  of  1901.    In  effeat  April  16,  1901. 

Former  section  4  without  change. 

Bee  section  2,  chap.  430  of  1874,  section  2,  chap.  446  of  1876,  and  section  9,  chap. 
193  of  1890,  now  repealed. 

§  5.  Sale  of  property  ;  possession  of  receiver  and  suits  against 
him. —  The  supreme  court  may  direct  a  sale  of  the  whole  of  the  prop- 
erty, rights  and  franchises  covered  by  the  mortgage  or  mortgages,  or 
deeds  of  trust  foreclosed  at  any  one  time  and  place  to  be  named  in  the 
judgment  or  order,  either  in  case  of  the  non-payment  of  interest  only, 
or  of  both  the  principal  and  interest  due  and  unpaid  and  secured  by 
any  such  mortgage  or  mortgages  or  deeds  of  trust.  Neither  the  sale 
nor  the  formation  of  the  new  corporation  shall  interfere  with  the  au- 
thority or  possession  of  any  receiver  of  such  property  and  franchises, 
but  he  shall  remain  liable  to  be  removed  or  discharged  at  such  time  as 
the  court  may  deem  proper.  No  suit  or  proceeding  shall  be  com- 
menced against  such  receiver  unless  founded  on  willful  misconduct  or 
fraud  in  his  trust  after  the  expiration  of  sixty  days  from  the  time  of 
his  discharge  ;  but  after  the  expiration  of  sixty  days  the  new  corpora- 
tion shall  be  liable  in  any  action  that  may  be  commenced  against 
it,  and  founded  on  any  act  or  omission  of  such  receiver  for  which 
he  may  not  be  sued,  and  to  the  same  extent  as  the  receiver,  but  for 
this  section  would  be  or  remain  liable,  or  to  the  same  extent  that  the  new 
corporation  would  be  had  it  done  or  omitted  the  acts  complained  of. 

8 


STOCK  CORPORATION  LAW. 
Former  section  5  without  change 

§  6.  Municipalities  may  assent  to  plan  of  readjustment.— 
The  commissioners,  corporate  authorities  or  proper  officers  of  any 
city,  town  or  village,  who  may  hold  stock  in  any  corporation,  the 
property  and  franchises  whereof,  shall  be  liable  to  be  sold,  may 
assent  to  any  plan  or  agreement  of  reorganization  which  lawfully 
provides  for  the  formation  of  a  new  corporation,  and  the  issue  of 
stock  therein  to  the  proper  authorities  or  officers  of  such  cities,  towns 
or  villages  in  exchange  for  the  stock  of  the  old  or  former  corporation 
by  them  respectively  held.  And  such  commissioners,  corporate 
authorities  or  other  proper  officers  may  assign,  transfer  or  surrender 
the  stock  so  held  by  them  in  the  manner  required  by  such  plan,  and 
accept  in  lieu  thereof  the  stock  issued  by  such  new  corporarion  in 
conformity  therewith. 

Amended  by  ch.  854  of  1901.    In  effect  April  16,  1901. 
Former  section  6  amended. 

See  eectiona  3,  4,  chap.  430  of  1874,  now  repealed. 

Under  this  section,  it  is  entirely  optional  with  the  stockholder  whether  he  will 
some  in  under  the  plan  and  join  the  new  company.  Vatable  V.  N.  Y.,  L.  E.  A  W. 
R.  R.  Co.,  96  N.  Y.,  49.  If  he  elects  to  join  the  new  company,  he  get*  a  propor- 
tional interest  therein,  but  such  right,  so  far  as  it  depends  upon  the  statute,  must 
be  exercised  within  the  six  months.  Id.  If  he  fails  to  do  so  within  such  time,  he 
can  not  take  or  claim  any  rights  under  the  plan.  Id.  In  such  cast,  the  conrti 
can  not  give  him  any  relief.  Id.;  Robinson  v.  Cropsey,  2  Edw.  Ch.,  138 ;  Gorman 
».  Low,  id.,  324;  Weed  v.  Weed,  94  N.  Y.,  243. 

Trust  company,  appointed  on  reorganization  of  railroad,  to  fix  amount  to  be  paid 
by  stockholders  for  new  stock,  etc.,  need  not  give  notice  of  time  and  place  of 
hearing.  Gernaheira  v.  Cent.  T.  Co.,  40  N.  Y.  St.  Rep.,  967. 

Unratified  attempt  by  certain  of  its  officers  to  fix  amount  does  not  exhaust 
power  of  company.  Id. 

Court  will  not  substitute  its  judgment  for  that  of  company,  nor  review  ita 
honestly  formed  determination  upon  legitimate  matter.  Id. 

Stockholder  who  acquired  stock  from  those  who  voted  for  plan  of  reorganiza- 
tion, can  not  insist  upon  its  being  ultra  vires,  or  enjoin  ita  accomplishment. 
Hollins  v.  St.  P.  M.  &  M.  R.  R.  Co.,  29  N.  Y.  St.  Rep.,  208. 

Contract  construed  so  that  rights  of  non-assenting  parties  can  not  be  changed  by 
majority  vote  of  certificate  holders,  taken  after  creation  of  new  corporation. 
Dutenhoffer  v.  A.  R.  R.  Co.,  38  N.  Y.  St.  Rep.,  710. 

Stockholder  of  former  corporation,  who  did  not  sign  agreement  to  exchange  for 
stock  in  new  corporation,  is  not  prejudiced  by  action  thereunder.  Bean  v.  A.  L. 
*  T.  Co.,  34  N.  Y.  St.  Rep.,  620. 

§  7.  Combinations   abolished. — No  domestic  stock  corpora- 
tion   and  ne  foreign  corporation  doing  business  in  this  state 

Q 


STOCK  CORPORATION  LAW.  K 

shall  combine  with  any  other  corporation  or  person  for  the 
creation  of  a  monopoly  or  the  unlawful  restraint  of  trade  or 
for  the  prevention  of  competition  in  any  necessary  of  life. 

[Am'd,  ch.  884  of  18&7.1 

Former  section  7  amended. 

Combination  of  corporations  to  prevent  competition  and  control  prices  subject* 
franchises  to  forfeiture.  People  t>.  North  R.  8.  R.  Co.,  19  N.  Y.  St.  Rep.,  868. 

Corporations  can  not  consolidate  their  funds  or  form  partnership.     Id. 

Corporate  acts,  defined.     Id. 

Transaction  between  defendant  and  central  association  was  held  trust  and  viola- 
tion of  its  charter,  and  failure  in  performance  of  its  corporate  duties,  so  material 
and  important  as  to  justify  judgment  of  dissolution.  People  v.  N.  R.  8.  R.  Co., 
121  N.  Y.,  682. 

When  combination  constitutes  legal  monopoly.     Id. 

Monopoly  may  be  created,  in  legal  sense,  in  article,  whether  supply  is  restricted 
by  nature  or  susceptible  of  indefinite  production.  Id. 

Any  combination,  the  tendency  of  which  is  to  prevent  competition  in  its  broad 
and  general  sense,  and  to  control,  and  thus,  at  will,  enhance  prices  to  the  detri- 
ment of  the  public,  is  a  legal  monopoly.  People  v.  North  R.  8.  R.  Co.,  22  Abb. 
N.  C.,  164. 

Receiver  of  one  member  of  trust  can  not  maintain  action  for  accounting  or  dis- 
solution. Gray  v.  Oxnard  Bros.  Co.,  31  N.  Y.  St.  Rep.,  968. 

Rights  of  such  receiver  defined.     Id. 

Receiver  of  one  member  of  trust  can  not  maintain  action  for  accounting-  of 
profits.  Gray  v.  Oxnard  Bros.  Co.,  59  Hun,  387. 

He  has  no  right  to  fruits  of  illegal  combination.     Id. 

Receiver  of  corporation  belonging  to  trust  is  entitled,  as  between  him  and  oot  • 
poration,  to  assets.  Pittsburgh  C.  Co.  v.  McMillin,  119  N.  Y.,  46. 

In  this  state,  there  can  be  no  partnership  of  separate  and  independent  corpora- 
tions, either  directly  or  indirectly,  through  medium  of  trust.  People  v.  N.  R.  8. 
R.  Co.,  121  N.  Y.,  682. 

It  is  a  violation  of  law  for  corporations  to  enter  into  a  partnership.     Id.;  N.  1 
*  8.  C.  Co.  v.  F.  Bk.,  7  Wend.,  412 ;  Clearwater  t>.  Meredith,  1  Wall.,  29  ;  Whe*- 
tenton  Mills  v.  Upton,  10  Gray,  696. 

The  consolidation  of  corporations  engaged  in  the  same  general  line  of  buaineM 
ie  not  against  public  policy.  Cameron  v.  N.  Y.  &  Mt.  Vernon  W.  Co.,  62  Hun, 
269.  The  combination  between  two  existing  corporations  for  the  prevention  of 
competition  is  condemned.  Id.  Their  consolidation  into  one  corporation  is 
permitted.  Id. 

Two  or  more  new  corporations,  organized  under  chap.  667  of  1890,  for  the  piu  - 
pose  of  carrying  on  any  kind  of  business  of  the  same  or  of  a  similar  nature  may 
consolidate,  but  they  can  not  maintain  their  separate  existence  and  combine  to 
prevent  competition  between  them,  or  between  themselves  and  other  corporation*. 
Cameron  v.  N.  Y.  &  Mt.  Vernon  W.  Co.,  62  Hun,  269 ;  N.  Y.  tt  Sharon  C.  Co.  9. 
Fulton  Bk.,  7  Wend.,  412;  Wheetenton  Mills  «.  Upton,  10  Gray,  682  j  Marine  Bk. 
0.  Ogden,  29  111.,  428. 


STOCK  CORPORATION  LAW. 

§  8.  Execution  of  mortgage. — Whenever  any  mortgage  affecting  prop- 
erty or  franchises  within  this  state  heretofore  or  hereafter  executed  by 
authority  of  the  board  of  directors  in  behalf  of  any  stock  corporation,  do- 
mestic or  foreign,  of  any  description,  recites  or  represents  in  substance  or 
effect  that  the  execution  of  such  mortgage  has  been  duly  consented  to,  or 
authorized  by  stockholders,  such  recital  or  representation  in  any  such 
mortgage,  after  public  record  thereof  within  this  state,  shall  be  presump- 
tive evidence  that  the  execution  of  such  mortgage  has  been  duly  and  suffic- 
iently consented  to,  and  authorized  by  stockholders  as  required  by  any 
provision  of  law.    After  any  such  mortgage  heretofore  or  hereafter  shall 
have  been  publicly  recorded  for  more  than  one  year  in  one  or  more 
of  the  counties  of  this  state  containing  the  mortgaged  premises  or  any 
part  thereof,  and  the  corporation  shall  have  received  value  for  bonds 
actually  issued  under  and  secured  by  such  mortgage,  and  interest  shall 
have  been  paid  on  any  of  such  bonds  according  to  the  terms  thereof, 
such  recital  or  representation  of  such  mortgage  so  recorded  shall  be 
conclusive  evidence  that  the  execution  of  such  mortgage  has  been  duly 
and  sufficiently  consented  to,  and  authorized  by  stockholders  as  required 
by  any  provision  of  law,  and  its  validity  shall  not  be  impaired  by 
reason  of  any  defect  or  insufficiency  of  consent  or  authority  of  stock- 
holders or  in  filing  or  recording  such  consent  or  authority,  and  such 
mortgage  shall  be  valid  and  binding  upon  the  corporation,  and  those 
claiming  under  it,  as  security  for  all  valid  bonds  issued  or  to  be  issued 
thereunder,  unless  such  mortgage  shall  be  adjudged  invalid  in  an  action 
begun  as  hereinafter,  in  this  section,  provided.     Notwithstanding  the 
foregoing  provisions  of  this  section,  the  invalidity  of  any  such  mortgage 
heretofore  recorded  because  of  insufficiency  of  consent  by  stockholders 
may  be  adjudged  in  any  action  for  such  purpose  begun  before  the  first 
day  of  April,  nineteen  hundred  and  two,  and  the  invalidity  of  any 
such  mortgage  hereafter  recorded,  because  of  insufficiency  of  consent  by 
stockholders,  may  be  adjudged  in  any  action  for  such  purpose  begun, 
within  one  year  after  the  earliest  record  of  such  mortgage  in  any  county 
in  this  state,  provided  in  either  case  that  such  action  shall  have  been 

lOa 


STOCK  CORPORATION  LAW. 

so  begun  by  or  in  behalf  of  the  corporation  by  direction  of  the  board 
of  directors  acting  in  their  own  discretion,  or  upon  the  written  request 
of  the  holders  of  not  less  than  one-third  of  the  capital  stock  of  the 
corporation ;  and  in  any  such  action  so  begun  by  or  in  behalf  of  the  cor- 
poration, the  recitals  or  representations  of  the  mortgage  shall  be  pre- 
sumptive evidence  only  as  first  above  provided.  Whenever  hereafter, 
in  compliance  with  any  law  of  this  state,  the  officers  of  any  corporation 
shall  have  made  and  filed  and  recorded  a  certificate  that  the  execution 
of  a  mortgage  hereafter  made  by  the  corporation  has  been  duly  con- 
sented to  by  stockholders,  such  certificate  shall  be  conclusive  evidence 
as  to  the  truth  thereof,  in  favor  of  any  and  all  persons  who  in  good 
faith  shall  receive  or  purchase,  for  value,  any  bond  or  obligation  pur- 
porting  to  be  secured  by  such  mortgage,  at  any  time  when  said  cer- 
tificate shall  remain  of  record  and  uncancelled.  Nothing  in  this  sec- 
tion contained  shall  affect  any  right  or  any  remedy  in  respect  of  any 
such  right  of  any  creditor  accrued  before  this  enactment  nor  shall  it 
dispense  with  the  necessity  of  obtaining  the  consent  of  the  board  of 
railroad  commissioners  to  any  mortgage  by  a  railroad  corporation. 
Added  by  chap.  854  of  1901.  In  effect  April  16, 1901, 

ARTICLE  II. 

DIRBOTORB    AMD    OFFICBRfl  J     THEIR    ELBCTION,    DUTIBB    AND    LIABILITIES. 
BBOTIO*  90.  Directors. 

21.  Change  of  number  of  directors. 

22.  When  acts  of  directors  void. 

23.  Liability  of  directors  for  making  unauthorized  dividends. 

24.  Liability  of  directors  for  contracting  unauthorized  debts  and  or**" 

issue   of  bonds. 

25.  Liability  of  directors  for  loans  to  stockholders. 

26.  Transfers  of  stock  by  stockholder*  indebted  to  corporation. 

27.  Officers. 

28.  Inspectors  and  their  oath. 

29.  Books  to  be  kept. 
80.  Annual  report. 

31.  Liability  of  officers  for  false  certificates,  report*  or  public  notice*. 

82.  Alteration  or  extension  of  business, 

88.  8ale  of  franchise  and  property. 

84.  Excessive  indebtedness  of  officer  or  director. 

lOb 


STOCK  CORPORATION  LAW. 

§  20.  Directors.— The  directors  of  every  stock  corporation  shall 
be  chosen  at  the  time  and  place  fixed  by  the  by-laws  of  the  corpora- 
tion by  a  plurality  of  the  votes  at  such  election.  Each  director  shall 
be  a  stockholder  unless  otherwise  provided  in  the  certificate,  or  in  a 
by-law  adopted  by  a  stockholders'  meeting.  Vacancies  in  the  board 
of  directors  shall  be  filled  in  the  manner  prescribed  in  the  by-laws. 
Notice  of  the  time  and  place  of  holding  any  election  of  directors 
shall  be  given -by  publication  thereof,  at  least  once  in  each  week  for 
two  successive  weeks  immediately  preceding  such  election,  in  a 
newspaper  published  in  the  countv  where  such  election  is  to  be  held, 
and  in  such  other  manner  as  may  be  prescribed  in  the  by-laws. 
Policy  holders  of  an  insurance  corporation  shall  be  eligible  to  election 

as   directors    whether   or   not  they  be  stockholders.     At  least  one-fourth   ia 
number  of  the  directors  of  every  stock  corporation  shall  be  elected  annually 
Amended  by  ch.  354  of  1901.     In  effect  April    16     1901 
Am'd  by  ch.  238  of  1906.     In  effect  April  16,  1906. 

Former  section  20  amended. 

See  sections  10,  26,  chap.  611  of  1875,  Hection  1,  chap.  422  of  1881,  section  1, 
ehap.  232  of  1883,  and  section  2,  chap.  23  of  1890,  now  repealed. 

The  powers  vested  in  a  corporation  aggregate,  which  has  a  board  of  trustee*, 
reside,  for  all  purposes  of  practical  administration,  in  the  board  as  a  governing 
body.  People's  Bank  v.  St.  Anthony's  R.  C.  Chui-ch,  109  N.  Y.,  512.  The  cor- 
poration can  only  act  through  instrumentalities  and  by  delegation.  Id.  When 
the  methods  and  agencies  by  which  it  may  act  are  designated  in  the  statute  creat- 
ing it,  such  designation  operates  as  a  limitation  and  excludes  other  modes  ot 
action.  Id. 

The  collective  authority  of  the  trustees  acting  as  a  board  is  essential,  m  order  to 
bind  the  corporation  by  the  action  of  the  trustees.  Id.  They  have  no  separate  or 
individual  authority  to  bind  the  corporation,  though  the  majority,  or  the  whole 
number,  acting  singly  and  not  collectively  as  a  board,  should  assent  to  the  partic- 
ular transaction.  Id. ;  Cammeyer  v.  The  Churches,  2  Sandf.  Ch.,  186 ;  Constant  t?. 
Rector,  etc.,  4  Daly,  305. 

The  business  of  a  corporation  must  be  carried  on  by  a  board  of  trustees.  Sheri- 
dan E.  L.  Co.  v.  Chatham  N.  Bk.,  40  N.  Y.  St.  Rep.,  311.  They  may  appoint  an 
executive  committee  of  their  own  members,  investing  it  with  power  to  transact 
the  business  of  the  company  during  the  interval  between  the  meetings  of  the 
board  of  trustees.  Id. ;  Olcott  v.  Tioga  R.  R.  Co.,  27  N.  Y.,  546.  Such  commit- 
tee can  delegate  power  to  indorse  checks  received  in  pursuance  of  its  contract. 
Id. 

Directors  are  authorized  to  manage  and  conduct  the  business  of  the  company, 
to  audit  and  pay  its  debts  and  make  such  contracts  as  are  within  the  ordinary 
scope  and  business  of  the  corporation.  Kelsey  v.  Sargent,  40  Hun,  150. 

They  are  not  authorized  to  vote  away  the  funds  of  the  stockholders  upon  claims 
known  by  them  to  be  fictitious  or  unfounded.  Id.  Thij  would  be  a  breach  of 
their  trust.  Id.  Nor  have  they  the  power  to  mortgage  or  consolidate  the  com- 
pany with  any  other  corporation,  or  to  compel  the  stockholders  to  surrender  up 
the  stock  owned  by  them,  or  to  accept  stock  in  another  company.  Id.;  Blatchford 
v.  Ross,  54  Barb.,  42.  Nor  have  they  the  power  to  bind  the  stockholders  to  pay 
such  salaries  as  they  by  resolution  see  fit  to  vote  themselves.  Id.;  Manx  F.  G.  R. 
Co.  v.  Branegan,  40  Ind.,  361  ;  Holder  v.  L.  F.  &  B.  &  M.  R.  R.  Co.,  71  111.,  106. 

The  board  may  delegate  its  power  to  agents,  or  to  a  quorum  of  less  than  a 
majority  of  the  trustees.  Hoyt  v.  Thompson's  executors.  19  N.  Y.,  207.  They 
may  ratify  the  unauthorized  acts  of  their  agents.  Id.  ;  F.  &  M.  Bk.  v.  Empire  S. 
D.  Co.,  5  Bosw.,  284  ;  see  6  Robt.,  208.  A  formal  resolution  is  not  necessary  for 
the  appointment  of  an  agent.  Com.  Bk.  v.  Kortright,  22  Wend.,  348 ;  N.  P.  Bk. 
t).  G.  A.  W.  Co.,  53  Supr.,  367;  Negley  v.  C.  R.  Co.,  1  N.  Y.  St.  Rep.,  298  ;  Kelsey 
«.  Sargent,  40  Hun,  150  ;  MacNaughton  v.  Osgood,  41  id.,  109  ;  Mnnson  v.  8.,  etc., 
R.  R.  Co..  4  Cent.  Rep.,  191. 

Authority  may  be  inferred  from  the  general  manner  in  which  an  officer  u 

11 


STOCK  CORPORATION  LAW. 


1  itemselve8  " 


S  upon  rescinding,  to  pay  the  reasonable  value  rf^^jjgJi  H    „, 

Trustees  voting:  themselves  an  increase  of  salary.     McNab  v.  U 

°  '  which  excludes  compensation,  applies  to  the  president,  chosen  by  the 

their  own  number,  and  also  to  a  treasurer,  when  a  director. 


entitled  Recover  on  a 
Dowell  v.  Sheehan,  36  N.  Y.  St. 


with  himself  and  for  hia  individual  benefit.     Matter  of  N.  F.  P.  Mfg.  Co.,  U 

stockholder   may  sue  directors  in  his  own  name.     Averill  v.  Barber,  26 
uire  for  themselves  certain  patents  belonging  to  corporation 


•n£veridge..N.Y.E.R.  R.  Co  ,  112  N.  Y,  1  ;  Leslie  ^  Lorillard  110  id    536, 
Hoyt  r>.  Thompson's  Em..  19  id.,  816  ;  Bar,-  t>.  N.\  ,  L    E  .  &  W  .  ^  R-  Co     U 

M 


by  one  of  them  <m  pa,  iue,it  of  royalty.     Burden  v.  Burden  Iron  Co.,  MM"*..  5j9' 
Liabiaty  of  directors  for  waste.     See  Gilbert  v.  Finch,  173  N.  Y.,  455. 
Where  charter  does  not  otherwise  provide  a  share  of  stock  is  a  voting  unit. 
Lord  v.  Equitable  Life  Assur.  Soc.,  47  Misc.   187. 

§21.  Change  of  number  of  dircctors.-The  number  of  direcl 

12 


STOCK  CORPORATION  LAW. 

of  any  stock  corporation  may  be  increased  c.r  reduced,  but  not  below  the 
minimum  number  prescribed  by  law,  when  the  stockholders  owning  a  majority 
of  the  stock  of  the  corporation  shall  so  determine,  at  a  meet  ing  to  be  held  at 
the  usual  place  of  meeting  of  the  directors,  on  two  weeks'  notice  in  writing 
to  each  stockholder  of  record.  Such  notice  shall  be  served  personally  or  by 
mail,  directed  to  each  stockholder  at  his  last  known  post-office  address.  Proof 
of  the  service  of  such  notice  shall  be  filed  in  the  office  of  the  corporation  at 
or  before  the  time  of  such  meeting.  The  proceedings  of  such  meeting  shall 
be  entered  in  the  minutes  of  the  corporation  and  a  transcript  thereof,  verified 
by  the  president  and  secretary  of  the  meeting  shall  be  filed  in  the  offices  where 
the  original  certificates  of  incorporation  were  filed.  Such  increase  or  reduction 
may  also  be  effected  by  unanimous  consent  without  a  meeting,  in  which  case 
there  shall  be  filed  in  the  offices  herein  specified  the  unanimous  consent  of  the 
stockholders  in  writing,  signed  by  them,  or  their  duly  authorized  proxies,  but 
no  such  consent  shall  be  valid  unless  there  is  annexed  thereto  an  affidavit  of 
the  custodian  of  the  stock  book  of  such  corporation  stating  that  the  persona 
who  have  signed  such  consent,  either  in  person  or  by  proxy,  are  the  holders  oi' 
record  of  the  entire  capital  stock  of  said  corporation  issued  and  outstanding. 
If  a  corporation  formed  under  or  subject  to  the  banking  law,  the  consent  of 
the  superintendent  of  banks,  and  if  an  insurance  corporation,  the  consent  of 
the  superintendent  of  insurance,  shall  be  first  obtained  to  such  increase  or 
reduction  of  the  number  of  directors.  This  section  shall  apply  to  any  stock 
corporation  whether  organized  under  a  general  or  special  law,  and  the  number 
of  directors  may  be  increased  as  hereby  provided  notwithstanding  the  maxi- 
mum number  of  directors  now  prescribed  by  law.  If  the  number  of  directors 
be  increased,  the  additional  directors  authorized  by  sueh  im-iease  shall  be 
elected  by  the  votes  of  a  majority  of  the  directors  in  <,:ii.-e  at  i'ne  time  of  ihe 
increase.  If  the  original  or  an  amended  certificate  of  incoipora.iu.i  ,,i  the  cor- 
poration shall  provide  that  the  directors  shall  be  divided  into  two  or  more 
classes,  whose  terms  of  office  shall  respectively  expire  at  ditrerent  times,  the 
additional  directors  shall  be  divided  among  such  elas-es  as  neuly  as  practic- 
able in  proportion  to  the  respective  numbers  of  directors  constituting  each 
class  prior  to  such  increase. 

Former  section  21  amended. 

See  section  2,  chap.  248,  of  1867;  section  10.  chap.  611,  of  1875;  section  1, 
chap.  422,  of  1881,  and  section  1,  chap.  23,  of  1890,  now  repealed. 

This  section  was  re-enacted  in  chap.  57  of  1891. 

Amended  by  ch.  320  of  1903.     In  effect  May  6,  1903. 

Amended  by  ch.  307  of  1904.     In  effect  April  13,  1904. 

Amended  bv  ch.  750  of  1905. 

By-law  requiring  vote  of  those  holding  a  larger  per  centage  than  a  majority 
of  stock  is  inconsistent  with  this  section.  Katz  v.  H.  &  H.  M'f'g  Co.,  109  App. 
Div.  49. 

§  22.  When  acts  of  directors  void. — When  the  directors  of  any  corporation 
for  the  first  year  of  its  corporate  existence  shall  hold  over  and  continue  to  be 
directors  after  the  first  year,  because  of  their  neglect  or  refusal  to  adopt  the 
by-laws  required  to  enable  the  stockholders  to  hold  the  annual  election  for 
directors,  all  their  acts  and  proceedings  while  so  holding  over,  done  for  and  in 
the  name  of  the  corporation,  designed  to  charge  upon  it  any  liability  or  obliga- 
tion for  the  services  of  any  such  director,  or  any  officer,  or  attorney  or  counsel 
appointed  by  them,  and  every  such  liability  or  obligation  shall  be  held  to  be 
fraudulent  and  void. 

Former  section  22  without  change. 

§  23.  Liability  of  directors  for  making  unauthorized  dividends.—' 
directors  of  a  stock  corporation  shall  not  make  dividends,  except  from  the  sur- 
plus profits  arising  from  the  business  of  such  corporation;  nor  divide,  with- 
draw or  in  any  wav  Tiny  to  the  stockholders,  or  nny  of  them,  any  part  of  the 
capital  of  such  corporation,  or  reduce  its  capital  stock,  except  as  authorized 
by  law.  In  case  of  any  violation  of  the  provisions  <>f  this  section,  the  directors 
under  whose  administration  the  same  may  have  happened,  excen^  tho*e  who 
may  have  caused  their  dissent  therefrom  to  be  entered  at  larse  upon,  the 
minutes  of  such  directors  at  the  time,  or  were  not  present  v.hen  the  same 
happened,  shall  jointly  and  severally  be  liable  to  such  corpora- 

!3 


STOCK  CORPORATION  LAW. 

tion  and  to  the  creditors  thereof  to  the  full  amount  of  any  loss 
sustained  by  such  corporation  or  its  creditors  respectively  by  reason 
of  such  withdrawal,  division  or  reduction.  But  this  section  shall 
not  prevent  a  division  and  distribution  of  the  assets  of  any  such  cor- 
poration remaining  after  the  payment  of  all  its  debts  and  liabilities 
upon  the  dissolution  of  such  corporation  or  the  expiration  of  its 
charter ;  nor  shall  it  prevent  a  corporation  from  accepting  shares  of 
it3  capital  stock  in  complete  or  partial  settlement  of  a  debt  owing 
to  the  corporation,  which  by  the  board  of  directors  shall  be  deemed 
to  be  bad  or  doubtful. 

Amended  by  cb,  864  of  1901.    In  effect  April  16,  1901. 

See  section  2,  title  4,  chap.  18,  part  1,  R.  8.,  section  13,  chap.  40  of  1848,  and 
section  19,  chap.  611  of  1875,  now  repealed. 

It  is  made  a  misdemeanor,  by  section  594  of  the  Penal  Code,  for  a  director  of  a 
stock  corporation  to  concur  in  any  vote  or  act,  by  which  it  is  intended  to  make  a 
dividend,  except  from  the  surplus  profits  arising  from  the  business  of  the  corpora- 
tion, and  in  the  cases  and  manner  allowed  by  law. 

See  chap.  XI  of  the  Penal  Code  for  the  criminal  liability  of  directors  in  such 
corporations. 

The  term  "  capital  stock,"  as  used  in  this  section,  means  the  property  of  the 
corporation,  contributed  by  the  stockholders  or  otherwise  obtained,  to  the  extent 
required  by  its  charter.  Williams  v,  Western  U.  T.  Co.,  93  N.  Y  ,  162  ;  Burrall  t>. 
Bushwick  R.  R.  Co.,  75  id.,  211 ;  Barry  v.  Merchants'  Ex.  Co.,  1  Sandf.  Ch.,280. 
When  its  property  exceeds  this  limit,  the  excess  is  surplus.  Id.  Such  surplue 
ir.ay  be  divided  among  the  stockholders,  either  in  money  or  property.  Id. 
Where  a  stock  dividend  does  not  exceed,  in  amount,  the  amount  or  value  of  suck 
surplus,  it  is  not  in  conflict  with  any  principles  of  public  policy.  Id. 

The  object  of  this  section  is  to  prevent  the  dissipation  of  the  fund  designed  for 
the  benefit  of  creditors.  Rorke  v.  Thomas,  56  N.  Y.,  559.  Though  a  clear  case 
must  be  established,  still  the  substance,  and  not  the  mere  form,  of  the  provision 
must  be  the  test  of  liability.  Id. 

The  object  of  the  provisions  of  this  section  was  to  prevent  a  withdrawal  of  the 
property  which  would  reduce  the  value  of  its  assets  below  the  sum  limited  for  its 
capital  in  its  articles  of  association.  Williams  v.  West.  U  T.  Co.,  93  N.  Y.,  162. 

By  this  section,  the  legislature  designed  to  provide  substantially  for  the  case*  in 
Which  individual  liability  should  result  from  the  acts  prohibited.  Excelsior  P.  Co. 
?>.  Embury,  4  Hun,  648 ;  affd  63  N.  Y.,  422  ;  Rochester  v.  Barnes.  26  Barb.,  657. 

The  trustees  are  not  liable  under  this  section  for  the  costs  in  a  judgment  against 
the  company  perfected  after  they  have  ceased  to  be  trustees.  Roike  v. 
Thomas,  ante. 

There  is  no  rule  of  law  which  imposes  upon  the  officei-s  of  corporations  the  duty 
of  requiring  the  production  of  the  certificate  of  stock  before  the  payment  of 
dividends  on  the  same.  Brisbane  v.  D.,  L.  &  W.  R.  R.  Co.,  94  N.  Y  ,  204  ;  jiff  'g 
2")  Hun,  438.  The  corporation  is  justified  in  being  governed,  in  paying  dividends, 
by  the  books  containing  the  lists  of  the  stockholders  until  proof  of  notice  is  given 
showing  that  other  parties  than  those  named  therein  are  the  owners  of  the  stork. 
Id. 

A  person's  title  to  dividends  upon  stock  standing  in  his  name  upon  the  com- 
pany's books,  is  conclusive  until  impeached  or  impaired  by  the  certificate  itself 
with  a  transfer,  or  other  evidence,  showing  that  the  stock  belongs  to  some  other 
party.  The  corporation  is  bound  to  pay  it  to  him,  or  his  personal  representatives, 
unless  it  has  some  notice  of  a  change  of  the'title,  or  of  a  transfer  of  the  stock,  pi- 
such  knowledge  or  information  as  will  put  it  upon  inquiry  as  to  the  ownership 
thereof.  Id. 

The  rate  of  dividend  to  be  paid,  and  the  amount  of  surplus  to  be  retained,  by  a 
corporation  must  rest  in  the  fair  and  honest  discretion  of  its  trustees.  McNab  T>. 
McNab  &  H.  Mfg.  Co.,  62  Hun,  18.  When  such  discretion  has  been  exercised,  the 
courts  do  not  undertake  to  control  such  action,  even  though  they  might  differ  in 
their  views  of  the  proper  management  to  be  adopted  and  followed.  Id.;  Williams  w. 
W.  U.  T.  Co.,  93  N.  Y.,  162 ;  Scott  v.  Eagle  P.  Co.,  7  Paige,  198. 

A  corporation  is  authorized,  by  law,  to  issue  a  scrip  dividend,  to  represent  its 
surplus  earnings.  Williams  u  W.  U.  T.  Co.,  93  N.  Y.,  162;  Hatch  v.  Same,  id., 
196.  See  Strong  v.  Brooklyn  Cross-Town  R.  R.  Co.,  id.,  426. 

See  also  Bank  of  Niagara  v.  Johnson,  8  Wend.,  645 ;  Northern  R.  R.  Co.  v. 
Miller,  10  Barb.,  260;  Williams  v.  W.  U.  T.  Co  ,  9  Abb.  N.  C.,  437. 

Dividends  must  be  made  out  of  surplus  profits  which  exist  in  praenti.    Williams  t>. 

14 


STOCK  CORPOKATION  LAW. 

Western  U.  T.  Co.,  9  Abb.  N.  C.,  419.  When  an  investment  or  earnings  baa  beeu 
raade,  a  dividend  equal  in  amount  to  such  past  earnings  cm  riot  be  declared 
limply  on  the  ground  that  there  have  been  in  the  past  such  earnings  Id. 

A  sale  or  assignment  of  the  stock  transfers,  by  operation  of  law,  all  benefits  to 
I't)  derived  from  the  HHIIK:,  and  all  profit*,  income,  dividends,  or  right  to  dividends 
l>y  contract,  which  form  a  constituent,  valuable  and  inseparable  portion  of  the 
<toi:k  Buai-dmun  v  Lake  S  &  M.  S.  Ry.  Co.,  84  N  Y..  157  ;  Jermain  v.  Same,  91 
ii..  483 

A  dividend  does  not  accrue  until  declared.  Parks  v.  Automatic  Bk.  P.  Co.,  14 
N.  V.  St  ±ie,,.,  710. 

A  shareholder  in  u  corporation  is  not  entitled  to  any  of  the  property  or  profit* 
until  a  division  has  been  made  or  a  dividend  declared.  Boardman  v.  Lake  8.  & 
M  S.  Ry.  Co.,  84  N,  Y.,  157. 

Until  a  dividend  is  declared,  the  profits  form  part  of  the  assets ,  but  when 
declared,  it  belongs  to  the  owners  of  the  stock  at  the  time.  Id.  A  prior  assign- 
ment by  a  stockholder  of  his  shares  carries  with  it  his  proportionate  share  of  the 
assets  including  all  undeclared  dividends.  Id. 

When  a  court  of  equity  will  interpose  to  compel  directors  to  declared  a  divi- 
dend. Id. 

Dividends  belong  to  the  owner  of  the  stock  at  the  time  they  are  declared.  Bris- 
bane v.  D.,  L  &  W.  R.  R.  Co  ,  13  W.  Dig  ,  184 

A  dividend,  declared  by  a  corporation  upon  its  stock,  belongs  to  the  holders  of 
the  stock  at  the  time  of  the  declaration,  without  regard  to  the  source,  from  which, 
or  the  time  during  which,  the  funds  divided  were  acquired  by  the  corj>oration. 
Jermain  v.  Lake  S.  &  M.  S.  Ry.  Co.,  91  N.  Y.,  488;  Boardman  v.  Same,  antet 
Manning  v.  Quicksilver  M.  Co.,  24  Hun,  361. 

When  a  dividend  has  once  been  declared  arid  credited  to  the  shareholder,  a  sale 
or  assignment  of  the  stock  does  not  transfer  his  dividend,  but  it  remains  subject 
to  his  control.  Jermain  v.  Lake  S.  &  M.  8.  Ry.  Co.,  ante. 

A  corporation  may  lawfully  issue  to  its  shareholders  bonds,  in  lieu  of  cash  divi- 
dends, to  represent  the  earnings  of  the  company  which  have  been  used  in  the  con- 
struction and  betterment  of  the  corporate  property.  Wood  v  Lary,  47  Hun,  550; 
Williams  v.  Western  U.  T.  Co.,  93  N.  Y.,  162  ;  N  Y.,  L.  E.  &  W.  R.  R.  Co.  «. 
Nickals,  119  U.  S.,  296 

The  right  of  the  preferred  creditors  to  dividends  does  not  depend  upon  their 
declaration  by  the  board  of  directors.  Wood  v.  Lary,  ante.  Such  right  is  not  lost 
by  the  fact  that  the  board  of  directora  did  not  declare  a  dividend  each  year,  pro- 
vided the  earnings  of  the  corporation  in  each  year,  over  and  above  its  expenses, 
were  sufficient  to  pay  such  dividends.  Id. 

Holders  of  preferred  guaranteed  stock,  though  not  entitled  to  -dividends  when 
no  profits  are  earned,  are  first  entitled  to  be  paid  the  amount  of  dividends  specified 
and  guaranteed,  including  all  arrears,  before  the  holders  of  common  stock  are 
entitled  to  any  thing.  Boardman  v.  Lake  S.  &  M  S.  Ry.  Co..  ante. 

Shares  can  not  be  lawfully  transferred  without  the  surrender  of  the  certificate 
which  has  been  issued  to  authenticate  the  right  of  the  person  named  in  it  to  them. 
Brisbane  v.  D.,  L.  &  W.  R.  R  Co.,  25  Hun,  438.  Until  such  surrender,  the  origi- 
nal stockholder  is  to  be  regarded  as  the  owner.  Id.  To  obtain  the  dividends  on 
the  shares  he  is  not  bound  to  produce  the  certificate,  but  can  do  so  upon  the  fact 
of  his  recorded  title  so  long  as  no  evidence  appears  from  which  his  right  can  be 
impeached  or  questioned.  Id.  Smiths.  Amer.  C  Co.,  7  Lans.,  317  ;  McNeel  v. 
Tenth  N.  Bk.,  46  N.  Y.,  325  ;  Manning  v.  Quicksilver  M.  Co.,  24  Hun.  3fO.  In 
•uch  case,  a  payment  of  dividends  to  the  administrator  of  one  in  whose  name  the 
stock  stands  is  authorized.  Id. 

Stockholder  can  not  sue  for  his  aliquot  share  of  dividends  until  division  is  made 
or  dividend  declared.  Beveridge  v.  N.  Y.  E.  R.  R.  Co..  112  N.  Y.  1. 

Declaration  of  dividend  is  discretionary.     Id. 

Dividend  on  stock  belongs  to  owner  at  time  it  is  declared,  in  absence  of  contrary 
provision,  or  rules  of  stock  exchange.  Hopper  v.  Sage,  112  N.  Y.,  530. 

An  action  can  not  be  maintained  by  the  corporation  for  the  performance  of  any 
act  prohibited  by  this  section,  under  any  statute,  as  it  prescribes  the  only  penalty 
recoverable  for  such  violation,  and  the  only  persons  who  may  sue  therefor.  Excel- 
sior P.  Co.  v.  Lacey,  63,2!.  Y..  422.  Nor  can  an  action  at  common  law  be  main- 
tained by  the  corporation  where  the  trustees  acted  in  good  faith,  and  no  question 
of  negligence  is  raised.  Id. 

15 


STOCK  CORPORATION  LAW. 

An  action  under  this  section  must  be  brought  within  three  years  from  the  time 
the  cause  of  action  accrued.  Merchants'  Bk.  v.  Bliss,  35  N.  Y.,  412. 

Where  a  stockholder  receives  from  a  corporation  dividends  declared  and  admit- 
ted by  it  to  be  due  to  him  on  shares  of  the  corporate  stock,  an  action  is  not  main- 
tainable against  him  in  the  first  instance  at  the  suit  of  one  claiming  to  be  entitled 
to  share  in  the  dividends,  but  whose  rights  had  been  ignored  by  the  corporation, 
to  recover,  as  for  moneys  had  and  received,  the  proportion  of  the  dividends  so 
received,  to  which  he  would  have  been  entitled,  if  his  shares  had  participated. 
Peckhamv.  Van  Wagenen,  83  N.  Y.,  40;  see  Butterworth  v.  Gould,  41  id.,  450; 
Patricks.  Metcalf,  37  id.,  332. 

The  remedy  of  one  thus  wrongfully  excluded  from  the  rights  of  a  stockholder 
is,  it  seems,  against  the  company.  Id.  He  can  not  follow  the  assets  of  the  coni- 

Eany  in  the  hands  of  parties  to  whom  it  has  been  paid,  until  he  has  at  least  estab- 
shed  his  rights  as  a  creditor  of  the  company,  and  has  exhausted  his  legal 
remedies  against  it.  Id.  If  he  had  been  an  admitted  stockholder,  and  a  dividend 
had  been  declared  upon  his  shares  with  the  others,  and  the  amount  of  the  divi- 
dend had  been  placed  in  the  hands  of  a  third  party  for  distribution,  a  trust  would 
be  created  in  his  favor,  and  he  «ould  follow  the  fund  in  the  hands  of  the  party 
who  had  thus  received  it,  or  his  transferee.  Id. ;  LeRoy  v.  Globe  Ins.  Co.,  2 
Edw.  Ch.,  657;  Matter  of  Le  Blanc,  75  N.  Y.,  598. 

McNab  v.  McNab  &  H.  Mfg.  Co.,  62  Hun,  18;  Hopper  v.  Sage,  112  N.  Y.,  530 ; 
Brundage  v.  Brundage,  60  id.,  544;  Hill  v.  Newichawanick  Co.,  8  Hun,  459; 
afFd  71  N.  Y.,  593;  Boardman  v.  Railway  Co.,  84  id.,  178;  Beveridge  v.  N.  Y. 
E.  R.  R.  Co.,  112  id.,  1,  27;  Jones  v.  Terre  H.  etc.,  R.  R.  Co.,  57  id.,  197;  Wil- 
liams 7).  W.  U.  T.  Co.,  93  N.  Y.,  162. 

lit  an  action  under  this  section,  all  the  creditors  of  the  company  must  be  joined. 
Anderson  o.  Speers,  21  Hun,  568;  59  How.,  421;  Homer  v.  Henning,  93  U.  S., 
228  ;  Buchannan  v.  Bartow  Iron  Co.,  3  Bradwell,  191 ;  Merchants'  Bk.  v.  Stephen- 
aon,  10  Gray,  232.  In  such  action,  an  accounting  is  necessary  to  determine  who 
are  creditors  of  the  company,  and  the  ratable  manner  in  which  the  .excess  should 
be  distributed  among  them.  Anderson  v.  Speers,  ante.  See  also,  Hatch  p.  Dana, 
101  U.  8.,  205  ;  Terry  v.  Little,  id.,  216  ;  McLean  v.  Eastman,  21  Hun,  312. 

Estimated  profits  are  not  "net  profits." 
Hutchinson  v.  Curtiss,  45  Misc.  484. 


§  24  (Liability  oi  directors  for  unauthorized  debts  and  over 
issue  of  bonds.) 
Repealed  by  ch.  864  of  1901.    In  effect  April  16,  1901. 


Former  section  24  amended. 

See  section  3,  title  4,  chap.  18,  part  1,  R.  8.,  section  23,  chap.  40  of  1848,  and 
section  22,  chap.  611  of  1875,  now  repealed. 

An  individual  creditor  of  the  company  can  not,  under  this  section,  maintain  an 
action  in  his  own  behalf  for  the  recovery  of  his  own  debt  against  the  officers  assent- 
ing to  the  unlawful  increase  of  the  company's  indebtedness.  Anderson  v.  Speei-s, 
21  Hun,  568  ;  Hornor  ?>.  Henning,  93  U.  8.,  228;  Buchannan  v.  Barto  Iron  Co.,  3 
Bradw.,  191 ;  Mer.  Banku  Stevenson,  10  Gray,  232.  The  other  creditors  of  the 
company  should  be  made  parties,  either  directly  or  theoretically.  Id.  An  action 
in  equity  alone  can  be  maintained.  Id. 

The  provision  does  not  render  the  trustees,  assenting  to  the  unlawful  increase  of 

16 


STOCK  CORPORATION  LAW. 

tke  company's  indebtedness,  liable  for  all  the  debts  of  the  corporation,  but  only  to 
the  extent  of  the  excess  of  the  indebtedness  over  the  amount  of  the  capital  slock 
of  the  company,  and  then  not  to  the  creditors  individually,  but  in  terms  to  the 
creditors  collectively,  and  as  a  mass.  Anderson  v.  Speers,  ante.  It  substantially 
creates  a  fund  to  the  extent  only  of  the  unlawful  excess  of  indebtedness,  in  the  dis- 
tribution of  which  all  the  creditors  are  ratably  entitled  to  participate.  Id. 

An  action  under  this  section  can  be  brought  only  by  all  the  creditors  jointly,  or 
by  one  creditor  in  behalf  of  himself  and  all  the  other  creditors  of  the  company. 
Id.  In  such  action,  each  creditor  can  recover  such  a  proportion  of  the  excess  of 
the  debts  over  the  amount  of  the  capital  stock  only  as  his  debt  bears  to  the  whole 
amount  of  the  debts  of  the  company.  Id.  See  also  McComb  v.  Kellogg,  16  N.  T. 
St.  Rep.,  16. 

This  section  does  not  forbid,  but  rather  permits  the  company,  to  create  further 
debts  when  those  already  created  equal  in  amount  to  the  capital  stock.  Patterson 
t).  Robinson,  36  Hun,  622.  In  order  to  secure  payment  to  the  creditor  who  became 
auoh  after  the  limit  of  the  capital  is  exceeded,  it  adds  the  personal  and  individual 
liability  of  the  trustees  assenting  to  such  excess,  to  the  liability  of  the  company. 
Id.  '  If  the  trustees  create  a  further  excess  of  indebtedness,  after  the  excess  of  in- 
debtedness over  the  capital  stock  already  exists,  their  personal  liability  seems  to 
attach  eo  'mstanti  the  debt  is  created.  Id. 

The  assenting  trustee  became  bound  to  the  creditor  by  the  contract  whereby 
the  excessive  debt  is  created,  and  can  not  be  discharged  therefrom  without  such 
creditor's  consent;  id.,  or  by  payment  to  him.  Id.  The  extinguishment  of  the 
aggregate  excess  of  indebtedness  by  paying  other  creditors,  does  not  cancel  the 
assenting  trustees'  personal  liability  to  the  creditor  for  the  excess.  Id.  Same  75. 
Same,  37  Hun,  341. 

Where  a  trustee  does  not  assent  to  the  creation  of  an  indebtedness  exceeding  the 
capital  stock  of  the  company,  his  subsequent  failure  to  dissent,  when  informed  of 
the  fact,  is  not  equivalent  to  the  assent  required  by  the  act.  Patterson  v.  Robin- 
son, 36  Hun,  622.  What  "assent"  is  required  to  make  a  trustee  liable  under  thia 
section.  Id. 

The  assenting  trustees  are  personally  and  individually  liable  for  such  excess  to 
the  creditors  of  the  company  to  whom  such  excess  is  owing.  Id. 

The  liability  of  the  assenting  trustee,  is  a  contract,  and  not  a  penal  liability. 
Id. ;  McComb  v.  Kellogg,  ante. 

In  an  action  under  this  section,  all  the  assenting  trustees  must  be  joined  as  parties. 
The  liability  is  joint  and  not  several.  McClave  v.  Thompson,  36  Hun,  365. 

In  determining  the  amount  of  the  liabilities  of  the  company,  to  ascertain  whether 
or  not  they  exceed  the  amount  of  the  capital  stock,  a  judgment  recovered  against 
the  company  by  one  of  the  trustees  for  money  advanced  to  it  by  him,  though  subse- 
quently assigned  to  a  third  person,  can  not  be  treated  as  one  of  such  liabilities.  Id. 

In  an  action  under  this  section,  it  is  enough  to  state  the  amount  of  the  paid  up 
capital,  and  to  give  the  amounts  of  the  claims  which  are  outstanding.  Robinson 
c.  Attrill,  66  How.,  121.  Even  though  some  of  them  are  not  due.  Id.  But  the 
claim  upon  which  the  action  is  brought  must  be  <'ue  at  its  commencement.  Id.  If 
an  apparent  claim  is  not  read,  this  fact  may  be  set  up  by  answer.  Id.  But  it  ia 
no  objection  that  some  of  items  of  indebtedness  were  created  in  favor  of  the 
directors,  or  some  of  them.  Id. 

Where  stock  has  been  issued  to  a  stockholder  as  paid  up  to  a  certain  amount, 
when  such  amount  has  not  in  fact  been  paid,  a  judgment  creditor  of  the  corpora- 
tion can  maintain  an  action  against  him  to  recover  the  amount  so  unpaid  on  the 
stock.  Christensen  v.  Eno,  21  W.  Dig.,  202.  Such  action  is  not  barred  until  ten 
years  after  the  time  when  it  accrued.  Id.  It  is  no  defense  that  the  indebtedness  of 
the  plaintiff  did  not  exist  at  the  time  of  the  delivery  of  the  stock  to  defendant.  Id. 

Creditor  of  corporation  can  not  recover  against  gratuitous  holder  of  its  bond, 
without  proof  of  some  payment  of  corporate  assets  on  such  bonds.  Christensen  v. 
I.  &  S.  L.  B.  Co.,  52  Hun,  478. 

When  stockholder  not  deemed  to  have  withdrawn  anything  from  company.     Id. 

The  party,  seeking  to  fix  a,  personal  liability  upon  a  trustee  under  t; 
must  allege  that  the  excess  of  indebtedness  was  equal  to  or  exceeded  the  amount 
of  his  claim.     Chambers  v.  Lewis,  28  N.  T..  454.     It  is  not  sufficient  to  allege  that 
such  excess  exceeds  the  amount  of  the  capital.     Id. 

Complaint,  which  alleges  incorporation  of  company,  execution  of 
excess  of  indebtedness  over  capital  at  time,  states  cause  of  action.     Lovelace 
v.  Doran,  39  N.  Y.  St.  Rep.    679. 

When  plaintiff  failed  to  prove  that  the  indebtedness  m  excess  of  the  pai 
up   capital   was   not      secured    by   mortgage,    complaint    properly   dismissed. 
Irving  Nat.  Bank  v.  Moynihan,  84  App.  Div.,  307. 

17 


STOCK  CORPORATION  LAW. 

§  25.  Liability  of  directors  for  loans  to  stockholders. — No  loan 
of  moneys  shall  be  made  by  any  stock  corporation,  except  a  monied 
corporation,  or  by  any  officer  thereof  out  of  its  funds  to  any  stock- 
holder therein,  nor  shall  any  such  corporation  or  officer  discount  any 
note  or  other  evidence  of  debt,  or  receive  the  same  in  payment  of  any 
installment  or  any  part  thereof  due  or  to  become  due  on  any  stock  in 
such  corporation,  or  receive  or  discount  any  note,  or  other  evidence 
of  debt,  to  enable  any  stockholder  to  withdraw  any  part  of  the  money 
paid  in  by  him  on  his  stock.  In  case  of  the  violation  of  any  pro- 
vision of  this  section,  the  officers  or  directors  making  such  loan,  or 
assenting  thereto,  or  receiving  or  discounting  such  notes  or  other  evi- 
dences of  debt,  shall,  jointly  arid  severally,  be  personally  liable  to  the 
extent  of  such  loan  and  interest,  for  all  the  debts  of  the  corporation 
contracted  before  the  repayment  of  the  sum  loaned,  and  to  the  full 
amount  of  the  notes  or  other  evidences  of  debt  so  received  or  dis- 
counted, with  interest  from  the  time  such  liability  accrued. 

Former  section  25  amended. 

See  section  2,  title  4,  chap.  18,  part  1,  R.  8.,  and  section  20,  chap.  611  of  1875, 
now  repealed. 

The  principal  object  of  this  section  is  to  prevent  a  reduction  of  the  capital,  under 
cover  of  loans  to  stockholders.  A.  C.  Nellis  Co.  v.  Nellis,  62  Hun,  63  ;  41  N.  Y. 
St.  Rep.,  599.  It  is  intended  for  the  protection  of  creditors.  Id. 

This  section  forbids  a  loan  to  a  stockholder.  Id.  The  fact  that  there  is  by  this 
section  a  special  liability  of  the  officers  to  the  creditors  does  not  take  away  the 
prohibition.  Id. 

A  board  of  trustees  can  not  ratify  an  act  which  they  could  not  lawfully  do  in  the 
first  instance.  Id.  Peterson  v.  Mayor,  etc.,  17  N.  Y.,  449;  Brady  v.  Same,  20 
id.,  312. 

The  provisions  of  this  section  apply  only  to  cases  where  there  is  a  loan  in  law, 
or  in  fact,  in  violation  thereof.  Billings  v.  Trask,  30  Hun,  314.  To  establish  a 
right  of  action  under  the  statute  on  behalf  of  creditors,  it  is  necessary  to  show  that 
the  transaction  out  of  which  it  is  claimed  to  have  arisen,  is  both  in  law  and  in  fact 
a  loan  of  money.  Id.  It  must  be  an  actual  loan  of  money  in  such  form  as  to 
create  an  indebtedness  to  be  at  some  time  repaid,  so  that  a  liability  for  repayment 
by  the  borrower  is  created.  Id. 

The  liability  created  by  this  section  exists  in  favor  of  a  certain  class  of  creditors 
only,  and  can  only  be  enforced  by  them,  and  not,  it  seems,  by  a  receiver.  Id. 

The  officers  making  or  assenting  to  any  loan  of  its  money  to  any  stockholders, 
are  personally  liable  for  all  the  debts  of  the  company  contracted  before  such  loan 
shall  be  paid.  Boynton  v.  Hatch,  47  N.  Y.,  225. 

§  26.  Transfers  of  stock  by  stockholder  indebted  to  corpo- 
ration.—  If  a  stockholder  shall  be  indebted  to  the  corporation,  the 
directors  may  refuse  to  consent  to  a  transfer  of  his  stock  until  such 
indebtedness  is  paid,  provided  a  copy  of  this  section  is  written  or 
printed  upon  the  certificate  of  stock. 

Former  section  26  without  change. 

See  section  12,  chap.  611  of  1876,  now  repealed. 

Rights  of  vendee  of  stock,  Johnson  v.  Underbill,  52  N.  Y.,  208  ;  McNeal ».  10th 
Nat  Bk.,  46  id.,  325  ;  Com.  Bk.  v.  Kortright,  22  Wend.,  384. 

§  27.  Officers.  —  The  directors  of  a  stock  corporation  may  appoint 

18 


STOCK  CORPORATION  LAW. 

from  their  number  a  president,  and  may  appoint  a  secretary,  treas- 
urer, and  other  officers,  agents  and  employes,  who  shall  respectively 
have  such  powers  and  perform  such  duties  in  the  management  of  the 
property  and  affairs  of  the  corporation,  subject  to  the  control  of  the 
directors,  as  may  be  prescribed  by  them  or  in  the  by-laws.  The  direc- 
tors may  require  any  such  officer,  agent  or  employe  to  give  security  for 
the  faithful  performance  of  his  duties,  and  may  remove  him  at  pleasure. 
The  policy  holders  of  an  insurance  corporation  shall  be  eligible  to  elec- 
tion or  appointment  as  its  officers. 

Former  section  27  amended. 

See  section  5,  chap.  40  of  1848,  now  repealed. 

See  also  section  22  of  this  act. 

The  board  of  trustees  may  appoint  an  executive  committee  of  its  members,  and 
invest  it  with  power  to  transact  the  business  of  the  company  during1  the  interval 
between  the  meetings  of  its  board  of  trustees.  Sheridan  E.  L.  Co.  ?>.  Chatham 
Nat.  Bk.,  127  N.  Y.,  517.  Such  committee  may  delegate  to  one  of  its  number 
power  to  do  merely  ministerial  acts,  such  as  the  indorsing  of  checks  payable  to 
the  corporation  autl  receiving  the  money  thereon.  Id.  See  People  ex  rel.  New- 
man v.  Sailors'  8.  H.,  54  Bai-b.,  532. 

Manufacturing  corporation  can  appoint  committee  to  transact  ordinary  business. 
Sheridan  E.  L.  Co.  v.  C.  Nat.  Bk.,  52  Hun,  575, 

Such  committee  can  delegate  power  to  indorse  company's  paper.     Id. 

When  no  formal  resolution  is  necessary.     Id. 

Company's  knowingly  appropriating  part  of  proceeds  to  its  use  amounts  to  rati- 
fication of  agent's  act.  Id. 

As  to  the  authority  of  the  president,  see  Beers  v.  Phoenix  Glass  Co.,  14  Barb., 
538 ;  L.  &  F.  Ins.  Co.  v.M.  F.  Ins.Co.,  7  Wend.,  31 ;  Kraft  v.  Freeman  P.  Co.,  87 
N,  Y.,  628. 

Officers,  assuming  the  responsibility  and  charged  with  the  duties  of  the  manage- 
ment of  the  corporative  business,  are,  it  seems,  chargeable  with  the  knowledge  as 
to  matters  which  are  open  to  observation  and  legitimately  subject  to  their  inspec- 
tion and  control.  Huntington  v.  Attrell,  118  N.  Y.,  365. 

The  addition,  to  their  individual  names,  of  that  of  their  titles  of  office,  or  a  state- 
ment of  their  respective  characters,  does  not  shield  the  office7'S  from  liability  upon 
a  contract  wherein  they  have  asssumed  to  contract  individually,  or  have,  by  the 
terms  of  their  agreement,  come  under  a  personal  obligation  to  their  several 

GMnisees.  Taft  v.  Brewster,  9  Johns.,  339  ;  Stone  v.  Wood,  7  Cow.,  453  ;  Quyon  t>. 
wis,  7  Wend.,  26.  But  they  do  not  become  individually  liable,  where  it  appears 
on  the  face  of  the  instrument  that  they  contracted  with  reference  to  corporate 
business,  and  they  had  authority  to  make  such  contract  on  behalf  of  the  corpora- 
tion. Whitford  v.  Laidler,  94  N.  Y.,  145 ;  Lincoln  i>.  Crandell,  21  Wend.,  101  ; 
Chouteau  v.  Suydarn,  21  N.  Y.,  179;  Shaefer  v.  Henkel,  75  id.,  378;  Randall  v. 
Van  Vechters,  19  Johns.,  60  ;  Brockway  v.  Allen,  17  Wend.,  40. 

Trustee  may  purchase  and  enforce  claim  against  company.  Inglehart  v.  T.  I. 
H.  Co.,  32  Hun,  377  ;  Crooked  L.  N.  Co.  v.  K  N.  Co.,  37  id.,  9 ;  Butler  -».  Duprat, 
51  Supr  '.  77. 

President,  when  empowered  by  by-laws,  can  make  necessary  negotiable  paper, 
without  authority  of  board  of  directors.  Chem.  N*t.  Bk.  v.  Colwell,  18  Daly,  28. 

Corporation  can  not  set  up  its  unpublished  and  neglected  by-laws  to  abut  au- 
thority of  its  president,  arising  from  having  been  permitted  to  hold  himself  out  aa 
general  manager.  Marine  Bank  v.  Butler  Co.,  23  N.  Y.  St.  Rep.,  318. 

It  is  estopped  from  denying  truth  of  his  representations.     Id. 

No  revocation  or  change  in  personnel  can  affect  third  party,  without  actual 
notice  to  him.  Id. 

Evidence  and  inferences  held  sufficient  to  warrant  finding  that  contract  of  presi- 
dent was  approved  of,  or  acquiesced  in,  by  directors.  Merrill  v.  C.  C.  Co.,  23 
N.  Y.  St.  Rep.,  114 ;  aff'g  53  Super.,  540. 

Authority  of  president  to  make  contract  is  admitted  by  admission  in  answer  of 
corporation,  of  plaintiff's  employment  for  one  year.  Id. 

19 


STOCK  CORPORATION  LAW. 

Recognition  and  election  as  secretary,  by  board  of  managers  of  corporation, 
resting  upon  mistaken  supposition,  are  not  equivalent  to,  or  available  as,  election 
as  manager,  required  by  law.  People  ex  rel.  Nicholl  v.  N.  Y.  I.  Asylum,  122 
N.  Y.,  190. 

To  restore  him  to  such  office,  writ  of  mandamus  will  not  issue.     Id. 

Nor  will  it  issue  when  office  filled  by  election.     Id. 

Power  of  president  to  indorse  notes  must  be  shown,  in  order  to  charge  corpora- 
tion. Nat.  Bk.  of  Rep.  v.  N.  P.  Co.,  56  Hun,  136. 

Proof  of  previous  indorsement  by  him  is  insufficient.     Id. 

Corporation  is  chargeable  with  possible,  as  well  as  actual,  knowledge  of 
trustees.  Id. 

Promise  by  president  will  not  bind  corporation  in  absence  of  proof  of  authority 
to  make  promise,  or  put  construction  on  contract.  Johnson  v,  U.  S.  &8.  Co.,  3< 
N.  Y.  St.  Rep.,  876. 

Contract  executed  in  name  of  corporation  by  president  and  secretary  and  sealed 
with  corporate  seal,  is  valid  until  contrary  is  shown.  Jourdan  v.  L.  I.  R.  R.  Co., 
11 5  N.  Y.,  380. 

Corporation  can  not  refuse  to  carry  out  unauthorized  contract,  which  it  had 
power  to  make,  supposed  it  had  made,  and  performed  while  profitable.  Id. 

Authority  by  person  to  bind  corporation  may  be  inferred  from  facts  and  circum- 
stances. Howell  v.  J.  E.  D.  Co.,  36  N.  Y.  St.  Rep.,  803. 

Person  suing  upon  such  contract  must  establish  such  authority.     Id. 

In  absence  of  de  jure  or  de  facto  treasurer,  any  manager  or  director  can  en- 
dorse corporation's  name  for  purpose  of  collecting  commercial  paper.  C.  M.  Co.  v. 
Mer.  Bk.,  59  Hun,  561. 

When  corporation  will  be  bound  by  indorsement  made  by  agent.  Lake  Shore 
Nat.  Bk.  v.  Butler  Col.  Co.,  51  Hun,  63. 

Payment  by  corporation  of  note  given  on  its  behalf,  establishes  authority  of 
person  giving  it.  Davies  v.  N.  Y.  C.  Co.,  36,  816. 

Acquiescence  by  board  of  directors  in  assumption  of  exclusive  management  by 
officer,  estops  bank  from  disputing  validity  of  arrangement  made  by  him  in  its 
business.  Id. 

Fact  that  plaintiff  is  bona  fide  holder  can  not  make  treasurer's  indorsement  of 
accommodation  note  corporate  charge.  Wahlig  v.  8.  P.  Co.,  36  N.  Y.  St.  Rep., 
390. 

Contract  made  and  signed  by  party,  though  referred  to  therein  as  agent  for  cor- 
poration, is  individual  contract  of  such  party.  Barber  A.  P.  Co.  v.  Brand,  27  N. 
Y.  St.  Rep.,  883. 

Power  of  officer  to  contract  debts  to  bind  manufacturing  corporation.  Rathburn 
•».  Snow,  15  Daly,  141. 

Claims  purchased  at  nominal  sum  by  director,  to  offset  demands  of  creditors 
against  insolvent  corporation,  will  be  allowed  only  at  amount  actually  paid.  Bulk- 
ley  v.  Whitcomb,  121  N.  Y.,  107. 

Parties  dealing  with  corporation  are  chargeable  with  notice  of  restriction  on 
powers  of  its  officers.  Bohm  v.  V.  L.  G.  B.  Co.,  30  N.  Y.  St.  Rap.,  424. 

Trustees  can  not  create,  by  implication,  liability  which  they  are  prohibited  from 
directly  creating.  Id. 

Contract  in  name  of  corporation  in  general  line  of  its  business,  by  its  accredited 
manager,  though  incompetent  under  by-laws,  is  binding  upon,  and  admissible 
against,  it.  Hamilton  C.  Co.  v.  Bernhard,  40  N.  Y.  State  Rep.,  875. 

Subsequent  delivery  by  company,  under  contract,  is  ratification,  even  though 
officer  wasincompetent.  Id. 

Treasurer  of  water  company  has  no  authority,  by  virtue  of  office,  to  bomm 
money  and  give  company's  note  therefor.  First  Nat.  Bank  v.  C  B.  C.  W.  W.  Co., 
56  Hun,  412. 

Directors  of  corporation,  fraudulently  putting  corporate  notes  in  circulation,  are 
liable  in  tort,  presumptively  for  face  value.  Met.  R.  Co.  v.  Kneeland,  120  N.  Y., 
134. 

Those  who  did  not  vote  to  issue  them  are  not  liable.     Id. 

Corporation  can  not  recover  against  its  authorized  officer  for  his  acts,  unless 
fraud  is  shown.  Holmes,  B.  &  H.  v.  Willard.  24  N.  Y.  St.  Rep.,  260. 

Loan  of  money  by  corporation  is  not  ultra  vires.     Id. 

When  officers  of  corporations  not  liable  for  injuries  through  ultra  vires  bueine**. 
H.,  B.  &  H.  t>.  Willard  (Ct.  of  App.,  1890),  125  N.  Y.,  76. 

20 


STOCK  CORPORATION  LAW. 

Power  to  remove  at  pleasure,  conferred  upon  board  of  officers,  may  be  exercised 
without  assigning  cause  or  giving  notice  to  incumbents.  Weidman  t>.  Board,  etc., 

26  N.  Y.  St.  Rep.,  765. 

Known  by-law  of  corporation,  providing  that  secretary  should  hold  office  during 
pleasure  of  board  of  directors,  gives  unqualified  right  of  removal.  Douglass  v. 
M«r.  Ins.  Co.,  118  N.  Y.,  484. 

Trustee  for  bondholders  under  second  mortgage  may  release  errors  in  decree  of 
foreclosure  of  prior  mortgage.  Loeb  v.  Chur,  25  N.  Y.  St.  Rep.,  996. 

Officer  of  corporation  need  not  surrender  his  security  without  payment  or  tender 
thereof.  Id. 

He  is  not  bound  to  sacrifice  his  own  interests  in  looking  after  its  interests.     Id. 

Creditor  can  not  attack  action  of  officer  without  proof  that  he  has  sustained 
damage  thereby.  Id. 

Burden  of  proof  is  upon  party  dealing  with  alleged  agent  of  corporation  to 
prove  his  authority.  Wilson  v.  K.  C.  E.  R.  R.  Co.,  114  N.  Y.,  487. 

Corporation  is  liable  for  mistaken  act  of  employe  within  line  of  duty.  Baylie  «. 
8.  C.  Co.,  38  N.  Y.  St.  Rep.,  492. 

Corporation  having  legal  status  and  general  business  office  in  this  state,  is  liable 
for  acts  of  its  agents  to  those  dealing  in  reliance  upon  their  authority.  Beuesch 
v.  J.  H.  M.  L.  Ins.  Co.,  16  Daly,  394. 

In  such  case,  special  limitations  do  not  control.     Id. 

Stockholder,  in  absence  of  agreement,  is  presumed  to  perform  duties  of  office 
gratuitously.  Mather  v.  E.  M.  Co.,  118  N.  Y.,  629. 

Officer  of  corporation  is  not  entitled  to  recover  from  corporation,  in  absence  of 
agreement,  for  services  rendered  in  legitimate  discharge  of  official  duties.  Barrill 
v.  Calendar  I.  Co.,  50  Hun,  257. 

Corporation  is  not  liable  for  services  rendered  upon  employment  of  president, 
which  are  solely  for  his  benefit.  Van  Valkenburgh  v.  T.  T.  &  6.  R.  R.  Co.,  22  N. 
Y.  St.  Rep.,  379. 

Spoliation  of  corporation  by  excessive  increase  of  salary,  made  to  induce 
stockholders  to  sell  stock,  will  be  enjoined.  Ziegler  v.  Hoagland,  52  Hun,  886. 

Officer  of  corporation  may  charge  for  services  rendered,  and  demand  fair  profit 
thereon  in  erecting  building  for  himself,  on  its  sale  to  corporation.  Gamble  «. 
Queens  Co.  W.  Co.,  123  N.  Y.,  91. 

Directors  of  company  have  no  authority  to  vote  interest — bearing  bonds  to  them- 
selves as  gratuity.  V.  T.  W.  C.  Co.  v.  M.  T.  Co.,  35  N.  Y.  St.  Rep.,  141. 

Trustees  can  not  purchase  blocks  of  lot  from  cemetery  corporation  and  deal 
with  property  for  their  own  benefit.  Palmer  v.  C.  H.  Gem.,  122  N.  Y.,  429. 

Superintendent  may  purchase,  when  not  produced  by  unfair  and  illegal 
means.  Id. 

Person  discounting  note  issued  for  salary  of  president,  pursuant  to  resolution  of 
board  of  directors,  is  bona  fide  holder  for  value.  Wilson  v.  Met.  R.  Co.,  120  N. 
Y..  145. 

By  purchasing  without  inquiry,  he  assumes  only  risk  of  proving  such  reso- 
lution. Id. 

Officer  can  recover  against  corporation  for  services  only  on  quantum  moruit. 
Copeland  V.  John  Mfg.  Co.,  19  N.  Y.  St.  Rep.,  212. 

Corporation  is  entitled  to  recover,  money  paid  to  officers  as  salary  under  invalid 
resolution.  A.  H.  G.  M.  &  M.  Co.  v.  Andrews,  120  N.  Y.,  58. 

Agreement  between  officers  of  corporation  to  accept  reduced  salary,  not  com- 
municated to  or  acted  on  by  it,  can  not  be  enforced  by  corporation.  R.  T.  Co.  v. 
Brook,  37  N.  Y.  St.  Rep.,  506. 

When  director  liable  for  services  performed  for  corporation.  Taylor  v.  Nostrand, 
35  N.  Y.  St.  Rep.,  332. 

Sheridan  E.  L.  Co.  v.  Chatham  N.  Bk.,  52  Hun,  575  ;  Olcott  v.  Tioga  R.  R.  Co., 

27  N.  Y.,  546  ;  Hoyt  v.  Thompson's  Exrs.,  19  id.,  207;  Com.  Bk.  v.  Norton,  1  Hill, 
304 ;  Emerson  v.  Providence  H.  Mfg.  Co.,  12  Mass.,  237  ;  Renwick  v.  Bancroft,  56 
Iowa,  527;  People's  Bk.   v.  St.  Anthony's,  etc.,  39  Hun,  498;  Melledge  v.   Boston 
I.  Co.,  5  Gush.,  158  ;  Lake  S.  N.  Bk.  v.  Butler  C.  Co.,  51  Hun,  63  ;  Ex.  N.  J 
Monteath,  17  Barb.,  1,1  ;  aff'd,  26  N.  Y.,  505;  De  Witt  v.  Walters,  9  N.  Y.,  572; 
Brown  v.  B.  &  D.  Bk.,  6  Hill,  443  ;  Moss  v.  Livingston,  4  N.  Y.,  203  ;  Marine  JN. 
Bk.  v.  Butler  C.  Co..  23  N.  Y.  St.  Rep.,  318  ;  Martin  v.  Mfg.  Co.,  44  Hun.  132; 
Same  v.  Webb,  110  U.  8.,  7,  15 ;  Bank  of  Attica  v.  P.  &  S.  Mfg.  Co.,  17  N.  Y.  St. 
*ep.,  327  ;  Alexander  v.  Cauldwell,  83  N.  Y.,  480 ;  De  Bost  v.  Albert  Palmer  Co., 

21 


STOCK  CORPORATION  LAW. 

36  Htm,  886 ;  P.  ft  M.  Bk.  v.  B.  &  D.  Bk.,  14  N.  Y.,  623  ;  Meads  v.  Merchant* 
Bk.,  25  id,  143  ;  Banking  Asso'n  v.  White  L.  Co.,  35  id.,  505  ;  Cooke  v.  State  Nat. 
BK.,  52  id.,  96 ;  Edwards  v.  Shaffer,  49  Barb.,  291 ;  Bank  u  Cornew,  37  N.  Y., 
830 ;  Same  v.  Railroad  Co.,  106  N.  Y.,  196 ;  Second  Nat.  Bk.  v.  P.  &  8.  Mfg.  Co., 
66  Super.,  216 ;  Mayor,  etc.,  v.  Tenth  Nat.  Bk.,  Ill  N.  Y.,  446;  Holden  v.  N.  Y.  & 
E.  Bk.,  77  id.,  291 ;  Atlantic  Bk.  v.  Savery,  32  id.,  291 ;  Cragie  t>.  Hartley,  99  id, 
131  ;  Jourdan  v.  Long  I.  R.  R.  Co.,  115  id.,  380 ;  Wilson  v~  Kings  Co.  E.  R.  R.  Co., 
114  N.  Y.,  487;  Woodruff  v.  R.  &  P.  R.  R.  Co.,  108  id.,  39;  Wild  t».  N.  Y.  &  8. 
M.  Co.,  59  id.,  644  5  Scott  r  Middletown.  etc.,  R  R.  Co.,  86  id.,  200;  Merrill  u 

Consumers'  C.  Co.,  114  id.,  216;  Barril  v.  Calendar  I.  &  W.  Co.,  50  Hun,  257; 

Ashley  v.  Kinnaw,  18  N.  Y.  St.  Rep.,  791. 
Secretary  and  director  representing  corporation  in  selling  ^oods  on  credit  and 

making  terms  has  power  to  pledge  credit  of  corporation  to  assist  customer.     Hess 

v.  W.  &  J.  Sloane,  66  App.  Div.,  522. 

§  28.  Inspectors  and  their  oath.—  The  inspectors  of  election  of 
every  stock  corporation  shall  be  appointed  in  the  manner  prescribed  in 
the  by-laws,  but  the  inspectors  of  the  first  election  of  directors  and  of 
all  previous  meetings  of  the  stockholders  shall  be  appointed  by  the 
board  of  directors  named  in  the  certificate  of  incorporation.  No 
director  or  officer  of  a  mouied  corporation  shall  be  eligible  to  election 
or  appointment  as  inspector.  Each  inspector  shall  be  entitled  to  a 
reasonable  compensation  for  his  services,  to  be  paid  by  the  corpora- 
tion, and  if  any  inspector  shall  refuse  to  serve,  or  neglect  to  attend  at 
the  election,  or  his  office  become  vacant,  the  meeting  may  appoint  an 
inspector  in  his  place  unless  the  by-laws  otherwise  provide.  The 
inspectors  appointed  to  act  at  any  meeting  of  the  stockholders  shall, 
before  entering  upon  the  discharge  of  their  duties,  be  sworn  to  faith- 
fully .execute  the  duties  of  inspectors  at  such  meeting  with  strict 
impartiality,  and  according  to  the  best  of  their  ability,  and  the  oath 
so  taken  shall  be  subscribed  by  them,  and  immediately  filed  in  the 
office  of  the  clerk  of  the  county  in  which  such  election  or  meeting  shall 
be  held,  with  a  certificate  of  the  result  of  the  vote  taken  thereat. 

Former  section  28  amended. 

See  section  7,  title  4,  chap.  18,  part  1,  R.  S.,  and  section  28,  chap.  611  of  1875, 
now  repealed. 

Who  may  be  inspectors  of  corporate  election.  Matter  of  Chenango  Co.  Mut. 
Ins.  Co.,  19  Wend.,  635.  See  Matter  of  Mohawk  &  H.  R.  R.  Co.,  id.,  135. 

Inspectors  of  a  corporate  election  may  be  candidates  at  such  election.  Ex  Parte 
Willocks,  7  Cow.,  402, 

An  election,  under  the  appointment  and  authority  of  one  inspector,  is  void. 
Matter  of  Lighthall  Mfg.  Co.,  47  Hun,  258.  Such  appointment  does  not  satisfy  the 
language  of  the  law,  and  he  has  no  authority  to  hold  an  election.  Id. 

An  election  of  directors  will  not  be  set  aside  on  a  summary  application  to  the 
supreme  court  for  that  purpose,  on  the  ground  that  the  inspectors  were  not  sworn 
in  the  form  prescribed  by  the  statute.  Matter  of  Mohawk,  etc.,  R.  R.  Co.,  19 
Wend.,  135.  Such  election  will  not,  it  seems,  be  set  aside  upon  such  application, 
though  no  oath  whatever  was  administered  to  the  inspectors,  if  no  objection  waa 
interposed  at  the  time  of  the  election.  That  they  were  duly  appointed  and 
entered  on  the  discharge  of  the  duties  of  their  office,  is  sufficient.  In  such  case, 
they  are  inspectors  de  facto.  Id. 

§  29.  Books  to  be  kept. — Every  stock  corporation  shall  keep 
at  its  office,  correct  books  of  account  of  all  its  business  and  trans- 
actions, and  a  book  to  be  known  as  the  stock-book,  contain- 
ing the  names,  alphabetically  arranged,  of  all  persons  who  are  stock- 

22 


SfOO&  COKPOilATION    LAW. 

holders  of  the  corporation,  showing  their  places  of  residence,  the 
number  of  shares  of  stock  held  by  them  respectively,  the  time  when 
they  respectively  became  the  owners  thereof,  and  the  amount  paid 
thereon  The  stock-book  of  every  such  corporation  shall  be  open 
dailv  during  at  least  three  business  hours  foi  the  inspection  of  its 
stockholders  and  judgment  creditors,  who  may  make  extracts  there- 
from.  No  transfer  ot  stock  shall  be  valid  as  against  the  corporation 
its  stockholders  and  creditors  for  any  purpose  except  to  render  th* 
transferee  liable  for  tne  debts  of  the  corporation  to  the  extent  pro- 
videdform  this  chapter,  until  it  shall  have  been  entered  in  such 
book  as  required  by  this  section,  by  an  entry  showing  from  and  to 
whom  transferred.  The  stock-book  of  every  such  corporation  and 
the  books  of  account  of  every  bank  shall  be  presumptive  evidence 
of  the  facts  therein  so  stated  in  favor  of  the  plaintiff,  in  any  action 
or  proceeding  against  such  corporation  or  any  of  its  officers  directors 
or  stockholders.  Every  corporation  that  shall  neglect  or  refuse  to 
keep  or  cause  to  be  kept  such  books,  or  to  keep  any  book  open  for 
inspection  as  herein  required,  shall  forfeit  to  the  people  the  sum  of 
fifty  dollars  for  every  day  it  shall  so  neglect  or  refuse.  If  any  officer 
or  agent  of  any  such  corporation  shall  wilfully  neglect  or  refuse  to 
make  any  proper  entry  in  such  book  or  books,  or  shall  neglect  or 
refuse  to  exhibit  the  same,  or  to  allow  them  to  be  inspected  and  extracts 
taken  therefrom  as  provided  in  this  section,  the  corporation  and  such 
officer  or  agent  shall  each  forfeit  and  pay  to  the  party  injured  a 
penalty  of  fifty  dollars  for  every  such  neglect  or  refusal,  and  all 
damages  resulting  to  him  therefrom. 

Amended  by  ch.  354  of  1901.    In  effect  April  16,  1901. 

Former  section  2:'  amended 

See  section  1,  title  4,  chap.  18,  part  1,  R.  S.,  sections  16,  17,  chap.  611  of  1875, 
and  section  29,  chap.  40  of  1848,  now  repealed. 

The  provisions  of  section  29  are  intended  solely  for  the  protection  of  the  corpora- 
tion. Chemical  Nat.  Bink  v.  Colwell,  43  N.  Y.  St.  Rep.,  876  ;  Isham  v.  Bucking- 
kam,  49  N.  Y.,  216;  Robinson  v.  National  Bank,  95  id.,  637;  McNeil  v.  Tenth 
Nat.  Bank,  46  id.,  331  ;  Leitch  v.  Wells,  48  id.,  58f).  They  can  be  waived  or  as- 
serted at  its  pleasure,  are  without  effect,  except  for  the  protection  of  the  corpora- 
tion, and  do  not  operate  to  prevent  the  passing  of  the  entire  title,  legal  and  equit- 
able, in  the  shares,  as  between  the  parties,  by  the  delivery  of  the  certificate,  with 
assignment  and  power  to  transfer.  Id 

Formerly  one,  who  took  a  certificate  with  the  usual  power  of  attorney,  as  be- 
tween himself  and  the  transferrer,  the  whole  title,  both  legal  and  equitable,  and 
it  makes  no  difference  that  the  blanks  were  not  filled  up.  Cutting  v.  Danaerel,  88 
N.  Y.,  410  ;  Holbrook  v.  N.  J.  Zinc  Co.,  57  id.,  616;  Driscoll  v.  W.  B.  &  C.  M.  Co., 
59  id.,  96.  This  rule  applied  especially  to  cases  in  which  the  direct  question 
arises  between  the  stockholder  and  the  corporation.  Id.  But  this  section  re- 
in >ves  the  distinction  and  makes  an  entry,  on  the  books,  of  the  transfer  essential 
to  relieve  the  stockholder  from  liability. 

The  general  rule  is  that  the  stockholder  whose  name  is  on  the  books  is  liable. 
Cutting  v.  Damerel,  ante.  This  rule  includes  actions  to  enforce  the  statutory 
liability  of  a  stockholder  to  a  creditor  of  the  company.  Id. 

The  case  of  Ro.^velt  v  Brown,  11  N.  Y.,  148,  holds  that  as  to  debts  the  holder 
of  the  stock  is  a  stockholder  under  the  statute. 

A  purchaser  of  stock  not  transferred  on  the  books  of  the  company  is  liable  to 

6iy  the  debts  of  the  company  as  though  he  had  entered  the  transfer.     Johnson  v. 
ndeihill.  52  N.  Y.,  203. 
Two  conditions  are  necessary  to  be  observed,  in  order  to  make  a  valid  sale  and 

28 


STOCK  CORPORATION  LAW. 

transfer.  Section  40  prohibits  all  transfers  until  all  previous  calls  thereon  shall 
have  been  fully  paid  in  ;  and  this  section  (29)  provides  that  no  transfer  shall  be 
valid  as  against  the  corporation,  its  stockholders  and  creditors  for  any  purpoae, 
except  to  render  the  transfer  liable  for  the  debts  of  the  corporation  according  to 
the  provisions  of  this  chapter,  until  it  shall  have  been  entered  in  the  book  of  the 
company  as  required  by  this  section,  by  an  entry  showing  from  and  to  whom 
transferred.  Billings  v.  Robinson,  28  Hun,  122. 

Section  26  authorizes  the  directors  to  refuse  consent  to  a  transfer  of  slock  under 
certain  conditions  therein  specified. 

To  make  the  transfer  available  as  a  protection  against  the  company,  its  stock- 
holders and  creditors,  from  paying  the  balance  due  on  the  shares  held,  the  trans- 
action must  be  an  honest  one,  entered  into  in  entire  good  faith,  with  the  intent  and 
purpose  of  disposing  of  the  entire  interest  in  the  shares  and  surrendering  all 
dominion  over  them.  Billings  v.  Robinson,  ante;  Veiller  v.  Brown,  18  id.,  371; 
Sanger  v.  Upton,  91  U.  8.,  56  ;  National  Bk.  v.  Case,  99  id.,  628  ;  Sawyer  v.  Hoag, 
17  Wall.,  619. 

This  section  does  not  make  the  book,  prt  vided  for  therein,  the  only  or  even  the 
best  evidence  of  the  fact  that  a  person  is  a  stockholder.  Herries  v.  Wesley,  1 3 
Hun,  492. 

The  person,  who  appears  upon  the  transfer  books  to  be  a  stockholder,  may,  as 
between  himself  and  third  parties,  have  parted  with  all  his  interest  in  the 
stock,  but,  as  between  himself  and  the  corporation,  he,  and  he  only,  is  treated  as 
«,  stockholder.  Rosevelt  v  Brown,  11  N.  Y.,  148.  An  absolute  transfer  upon  the 
books  can  not  be  explained  or  controlled  by  any  separate  and  distinct  agreement 
entered  into  between  the  parties  to.  such  transfer.  Id. 

The  title  still  remains,  as  against  the  corporation,  the  stockholders  and  creditors, 
in  the  original  holder,  where  the  stock  is  hypothecated  and  afterwards  assigned  to 
trustees  for  the  benefit  of  creditors,  and  neither  the  pledgee  nor  assignee  takes  a 
transfer  upon  the  books  of  the  company,  or  causes  himself  to  be  registered  as 
stockholder.  Richardson  v.  Abendroth,  43  Barb.,  162. 

The  legal  title  is  in,  and  the  legal  liability  for  debts  of  the  corporation  upon, 
him  in  whose  name  the  stock  is  registered,  though  others  may  have  a  lien  upon,  or 
equitably  own  it.  Id. 

This  section  does  not  affect,  as  between  vendor  and  vendee,  the  validity  of  an 
assignment  in  reality  made,  though  the  stock  is  not  transferred  in  legal  form. 
Johnson  v.  Underbill,  52  N.  Y.,  203.  Such  vendor  is,  in  effect,  but  the  nominal 
holder.  Id.  Both  vendor  and  vendee  are  primarily  liable  to  creditors  of  the  com- 
pany, in  accordance  with  the  provisions  of  this  section.  Id.  And  each  is  liable 
to  the  other,  in  accordance  with  general  legal  rules.  Id. ;  Com.  Bk.  v.  Kortright, 
32  Wend.,  348 ;  Bk.  of  Attica  v.  Smalley,  7  Cow.,  770 ;  Gilbert  v.  M.  I.  M.  Co.,  11 
Wend.,  627. 

This  section  provides  the  means  to  the  creditors  of  easily  learning  who  were 
the  stockholders  at  any  time,  and  of  easily  showing  the  fact.  Johnson  v.  Under- 
bill, ante.  It  holds  any  one  ever  a  stockholder  to  a  continued  liability,  unless  there 
is  put  upon  the  proper  book  the  entry  which  will  show  when  he  ceased  to  be  a 
stockholder,  and  to  whom  he  has  transferred  his  stock.  Id.  In  addition  to  the 
transferrer's  liability,  it  makes  the  transferree  liable  also  to  the  creditors.  Id. 

The  vendee  of  stock  takes  the  shares  subject  to  all  the  burdens  and  liabilities 
attached  to  and  growing  out  of  them.  Id.  He  is  liable  to  the  vendor  for  any 
debts  thereafter  incurred  by  the  corporation,  which  the  vendor,  under  the  pro- 
visions of  this  act,  is  obliged  to  pay  by  reason  of  his  name  still  remaining  upon 
the  books  as  the  apparent  owner.  Id. 

Until  the  transfer  is  actually  made  upon  the  books,  the  vendor  is  to  be  treated 
as  the  trustee  of  the  stock  for  his  vendee.  Id. 

A  transfer  of  ptock,  valid  as  between  the  parties,  but  not  consummated  by  an 
entry  upon  the  book  of  registry  of  stockholders,  does  not  divest  the  transferrer  of 
liability  as  a  stockholder  to  the  creditors  of  the  corporation.  Shellington  v.  How- 
land,  53  N.  Y..  371. 

An  entry  upon  the  books  of  registry  is  required  for  the  protection  of  the  com- 
pany and  its  creditors.  Id.  Each  creditor  may  hold  the  stockholders  to  their 
liability  as  such  until  they  have  divested  themselves  of  the  title  to  their  shares  by 
a  completed  transfer,  as  prescribed  by  law.  Id. 

A  transfer  of  stock  made  in  good  faith  and  at  a  time  when  the  corporation  is  a 
going  and  solvent  concern,  and  entered  upon  the  corporate  books,  relieves  the 

24 


STOCK  CORPORATION  LAW. 

transferor  from  all  the  responsibilities  which  attached  to  him  as  a  creditor. 
Tucker  v.  Oilman,  121  N.  Y.,  189  ;  Adderly  v.  Stone,  6  Hill,  624 ;  Roeevelt  v. 
Brown,  11  N.  Y.,  148;  Johnson  v.  Underbill,  52  id.,  203;  Cutting  v.  Damerel,  88 
id.,  410. 

la  an  action  under  section  57  of  this  act,  the  corporate  books  are,  to  some  ex- 
teat,  evidence  against  stockholders  who  are  chargeable  with  knowledge  of  their 
contents.  Blake  v.  Gris>*«W,  103  N.  Y.,  429. 

A  subscriber  is  liable  for  the  amount  of  hio  subscription,  though  after  calls  are 
made,  and  before  they  are  payable,  he  assigns  his  stock  to  a  responsible  party, 
and  has  it  transferred  to,  and  an  account  opened  with  him,  on  the  books  of  the 
company.  Schenectady,  etc.,  Co.  v.  11  N.  Y.,  102. 

The  delivery  of  the  certificate,  as  between  the  owner  and  assignee,  with  the  as- 
signment and  power  indorsed,  passes  the  entire  legal  and  equitable  title  in  the 
stock,  subject  only  to  such  liens  or  claims  as  the  corporation  may  have  upon  it. 
Cushman  v.  Thayer  Mfg.  J.  Co.,  76  N.  Y.,  365 ;  McNeil  v.  Tenth  Nat.  Bk.,  46  id., 
331 ;  N.  Y.  &  N.  H.  R.  R.  Co.  v.  Schuyler,  34  id.,  30,  80. 

Where  a  subscriber,  after  receiving  his  shares,  made  transferable  upon  the 
books  of  the  corporation  by  the  terms  of  the  certificate,  makes  a  transfer  thereof 
in  good  faith,  and  the  company  accepts  a  surrender  of  his  certificate,  issues  a  new 
one  to  the  transferee  and  credits  him  with  the  stock  upon  its  books,  the  transaction 
amounts  to  a  consent  by  the  company  to  a  release  of  the  former  stockholder  from 
liability  for  future  calls,  and  a  substitution  of  the  liability  of  the  transferee.  Bil- 
lings v.  Robinson,  94  N.  Y.,  415 ;  Cowles  v.  Cromwell,  25  Barb.,  414;  Isham  «. 
Buckingham,  49  N.  Y.,  220. 

But  the  issue  of  a  new  certificate  to  the  transferee  is  not  essential  to  effect  this 
result,  where  there  exist  other  circumstances  which  clearly  indicate  the  intent  of 
the  parties,  and  establish  by  their  mutual  assent  such  release  and  substitution.  Id. 

The  delivery  of  a  certificate,  together  with  a  power  of  attorney,  authorizing  the 
person  to  whom  such  certificate  is  delivered  to  transfer  the  shares  upon  the  books 
of  the  company,  transfers  the  title  to  such  shares^to  him  without  their  formal 
transfer  upon  the  books  of  the  corporation.  Dunn  v.  Star  Fire  Ins.  Co.,  19  W. 
Dig.,  531  ;  7  Lans.,  317. 

The  liability  of  stockholder  to  creditors  of  the  company  is  not  discharged  by  a 
transfer  of  the  stock  on  the  corporate  books,  unless  it  is  made  in  pursuance  of  an 
actual  bona  fide  sale,  without  any  secret  understanding  or  trust  in  favor  of  the 
tranferrer.  Veiller  v.  Brown,  18  Hun,  571. 

No  member  of  a  corporation  can  exonerate  himself  from  liability,  or  defeat  the 
claims  of  creditors,  by  transferring  his  interest  to  an  insolvent  person  or  to  a 
bankrupt.  McLaren  v.  Franciscus,  43  Mo.,  452 ;  or  make  a  fraudulent  transfer 
for  the  purpose  of  avoiding  personal  liability.  Marcy  v.  Clark,  17  Mass.,  330. 

The  company  is  liable  for  an  unauthorized  refusal  to  transfer  stock  on  its  booke. 
Dunn  v.  Star  Fire  Ins.  Co.,  19  W.  Dig.,  531. 

The  company  should  resist  the  transfer  on  its  books  without  production  and  sur- 
render of  the  outstanding  certificates,  or  proof  of  loss  or  destruction,  and  prooi 
that  the  real  owner  has  applied  for  a  new  certificate.  Smith  v.  Amer.  C.  Co.,  7 
Lans.,  321 ;  Cushman  v.  Thayer  Mfg.  J.  Co.,  76  N.  Y.,  365 ;  N.  T.  &  N.  H.  R.  R. 
Co.  v.  Schuyler,  34  id.,  83. 

An  equitable  action  will  lie  to  compel  a  transfer  upon  its  books  by  a  corpora- 
tion, of  shares  of  its  capital  stock,  to  the  owner  of  the  same.  Cushman  t>.  Thayer 
Mfg.  J.  Co.,  76  N.  Y.,  365  ;  Middlebrook  v.  Merchants'  Bk.,  41  Barb.,  481 ;  21  How., 
474  ;  aff'd  3  Abb.  Ap.  Dec.,  295  ;  Com.  Bk.  v.  Kortright,  22  Wend.,  348 ;  Pollock 
».  Nat.  Bk.,  7  N.  Y.,  274  ;  Purchase  v.  N.  Y.  Ex.  Bk.,  3  Robt.,  164;  White  v. 
Schuyler,  1  Abb.,  N.  S.,  300 ;  Buckmaster  v.  Consumers'  Ice  Co.,  5  Daly,  313 ; 
Cushman  v.  Thayer  Mfg.  J.  Co.,  53  How.,  60 ;  aff'd  7  Daly,  330.  The  general 
rule  is  for  courts  of  equity  not  to  entertain  jurisdiction  for  a  specific  perform- 
ance on  the  sale  of  stock.  Cushman  v.  Thayer  Mfg.  J.  Co.,  76  N.  Y.,  365.  But 
this  rule  is  limited  to  cases  where  a  compensation  in  damages  will  furnish  a  com- 
plete and  satisfactory  remedy.  Id.  Where  a  recovery  of  damages,  for  a  refusal 
to  transfer,  will  furnish  an  inadequate  compensation,  an  equitable  action  is 
proper.  Id. 

Any  act  suffered  by  the  corporation,  which  wrongly  invests  a  third  party  witt 
the  ownership  of  shares  of  stock,  without  due  production  and  surrender  of  the 
certificate,  renders  it  liable  to  the  owner.  Cushman  v.  Thayer  Mfg.  J.  Co.,  76  N. 
Y.,  865. 

26 


STOCK  CORPORATION  LAW. 

A  provision  in  the  act  of  incorporation,  or  in  the  by-laws,  requiring  transfers  of 
stock  to  be  made  upon  its  books,  ia  for  the  benefit  of  the  corporation.  Robinson 
u.  Nat.  Bk.,  95  N.  Y.,  637.  This  requirement  will  be  deemed  waived  and  non- 
essential,  when  it  wrongfully  refuses  to  obey  its  own  rule.  Id.  Isham  v.  Buck- 
ingham, 49  N.  Y.,  220;  Billings  v.  Robinson,  94  id.,  415;  Johnsan  t>.  Laflin,  17 
Alb.  L.  J.,  146.  After  refusal,  without  a  valid  reason,  to  make  a  transfer  on  its 
books,  the  corporation  is  bound  to  recognize  the  title  of  the  assignee,  precisely  the 
same  as  though  it  had  done  its  duty  and  made  the  proper  entries.  Robineon  t>. 
Nat.  Bk.,  ante.  The  transferee  in  such  case  is  entitled  to  maintain  an  action  to 
recover  the  declared  dividends  without  a  further  request  or  demand.  Id.  His 
right  is  not  affected  by  the  fact  that  he  can  bring  an  equitable  action  to  compel  a 
transfer,  or  an  action  at  law  to  recover  damages  for  the  wrongful  acts  of  the  com- 
pany. Id. 

Usually,  a  corporation,  acting  in  good  faith  and  without  notice  of  the  rights  of 
others,  may  treat  registered  shareholders  as  the  actual  owners  of  the  shares  stand- 
ing in  their  names.  Campbell  v.  American  Zylonite  Co  ,  122  N.  Y.,  455.  But  this 
rule  is  only  applicable  to  such  transactions  as  are  within  the  express  or  implied 
powers  conferred  upon  the  company  or  its  shareholders  Id.  The  assignees  of 
shares  having  possession  of  the  certificates,  though  holding  under  unregistered 
transfers,  are  not  bound  by  contracts  between  the  corporation  and  the  regis- 
tered, and  all  other  stockholders,  which  are  not  within  Buch  express  or  implied 
powers.  Id.  As  between  the  assignor  and  assignee,  the  unregistered  assign- 
ment is  void  under  this  section.  Id. 

The  object  of  the  provision  of  this  section  in  regard  to  an  exhibition  or  inspec- 
tion of  the  books  is  to  give  a  liberal  opportunity  at  all  reasonable  times  to 
examine  the  books  and  to  punish  the  person  in  charge  who  should  willfully  and 
intentionally  deprive  the  creditors  and  stockholders  of  such  examination.  Kelsey 
v.  Pfaulder  P.  F.  Co.,  41  Hun,  20.  Where  the  company  has  provided  a  safe  in 
which  the  books  are  kept,  and  the  clerk,  who  has  the  key  and  combination  of  the 
safe,  is  necessarily  called  away  for  a  short  time,  it  is  not  unreasonable  to  request 
a  creditor  or  stockholder  to  wait  until  the  morning  of  the  next  business  day,  to  see 
the  books.  Id.  A  willful  and  intentional  attempt  to  deprive  them  of  such 
examination  must  appear.  Id. 

Where  no  statutory  right  to  inspect  the  books  of  a  corporation  exists,  the  grant- 
ing1 or  refusing  a  writ  of  mandamus  to  compel  the  officers  of  such  corporation  to 
allow  a  stockholder  to  make  such  inspection  is  discretionary.  Matter  of  8age,  70 
N.  Y.  220  ;  People  ex  rel.  Hatch  v.  Lake  Shore,  etc.,  11  Hun,  1.  But  this  right  is 
expressly  given  by  this  section,  and  the  above  cited  cases  do  not  apply  to  a  pro- 
ceeding under  it.  People  ex  rel.  McDonald  v.  U.  8.  M.  R.  Co.,  20  Abb.  N.  C.,  192. 

Under  this  section,  the  books  shall  daily,  during  busing*  hour?,  be  open  for  Ihe 
inspection  of  stockholders  and  creditors  of  the  corporation,  and  their  personal 
representatives,  at  its  principal  business  office.  Id.  If  either  of  these  persons 
applies  in  person  to  inspect  the  books,  and  his  application  is  refused,  he  is 
entitled  to  a  mandamus  as  a  matter  of  absolute  right.  Id.  But  a  demand,  made 
by  his  attorney-at-law,  is  insufficient  to  found  a  proceeding  to  compel  inspection. 
Id.  It  may  be  doubted  whether,  even  though  a  proper  demand  is  made,  such 
proceeding  can  be  maintained  against  the  company  itself.  Id. 

Any  officer  of  the  corporation,  having  the  charge  of  its  books,  who,  though  he 
submits  them  to  the  inspection  of  the  stockholder  or  creditor,  shall  yet  refuse  to 
permit  him  to  take  extracts  therefrom,  subjects  himself  to  the  penalty  prescribed 
in  this  section.  Cortheal  v.  Bronner,  5  N.  Y.,  562. 

A  corporation  is  liable  under  this  section  for  failure  to  exhibit  the  stock-book, 
when  requested,  and  the  exercise  of  due  diligence  to  do  so  is  not  shown.  Kelsey  v. 
Pfaulder  P.  F.  Co.,  20  N.  Y.  St.  Rep.,  533.  The  stockholder  need  not  show  pecu- 
niary loss.  Id.  What  does  not  constitute  a  waiver  of  the  right  to  enforce  the 
penalty.  Id. 

The  officer  having  the  custody  of  the  books  is  not  constituted  by  this  section  a 
judge  of  the  motives  of  the  stockholder  in  making  his  inspection,  or  of  the  precise 
manner  in  which  it  shall  be  conducted,  or  of  the  purpose  which  the  information 
thus  obtained  shall  be  made  to  subserve.  Cortheal  v.  Browner,  5  N.  Y.,  562. 
This  section  does  not  authorize  the  custodian  to  close  the  books  because  the  stock- 
holder or  creditor,  in  the  progress  of  his  examination,  may  make  an  extract  for 
any  purpose.  Id. 

A  stockholder  in  an  incorporated  company  can  not  be  deprived  of  the  right  to 

80 


STOCK  CORPORATION  LAW. 

Inspect  the  books  of  the  company  because  they  ui-c  kept  in  a  particular  way,  or 
contain,  along  with  the  information   to  which  he  is   entitled,   other  information 
vhi.-.h  he  has  no  right  to  demand.     People  ex  rel.  Richmond  r.  Puritir  M   E 
l  0  Barl)  ,  217.     If  the  corporation  does  not  keep  the  books  which  the  Matut«- 
t  r.ribes,  it  n  its  duty  to  permit  an  inspection  of  such  as  it  does  keep  for  th»s  pur- 
pose of  recording  the  transactions,  which  the  statute  gives  the  stockholders  the 
i  vht  to  know.     Id. 

Every  stockholder  has  a  right  to  know  who  are  qualified  voters,  and  the  number 
df  votes  each  shareholder  is  entitled  to  cast.  People  ex  rel.  Richmond  v  Pacific 
I.I.  S.  Co..  50  Barb.,  280  ;  Cotheal  v.  Browner,  5  N.  Y.,  562. 

What  is  not  such  a  denial  of  positive  averments  of  ownership  of  shares  con- 
tained in  the  applicant's  affidavit  for  an  inspection  of  the  corporate  books  as  to 
defeat  an  application  for  a  mandamus  to  compel  the  company  to  permit  an  inspec- 
tion. Matter  of  Martin,  41  N.  Y.  St.  Rep.,  409.  See  also  People  v.  Board,  etc., 
46  Hun,  296  ;  People  v.  Cromwell,  102  N.  Y.,  477 ;  People  v.  Common  Council,  77 
id.,  503;  People  v.  Supervisors,  25  N.  Y.  St.  Rep.,  737;  Sullivan  v.  Gilroy,  65 
Hun.  285  ;  Kelsey  ?\  Pfaulder,  20  N.  Y.  St.  Rep.,  533.  The  fact  that  the  b>-l»ws 
of  the  company  direct  that  the  books  shall  be  in  the  charge  of  the  secretary  is  no 
defense  to  such  application,  where  the  refusal  of  the  treasurer  to  permit  inspection 
ia  unqualified,  and  not  put  on  the  ground  of  inability  Matter  of  Martin,  ante. 

Under  section  17,  chap.  611,  of  1875,  it  was  held  that  the  right  of  the  stockholder* 
to  inspect  the  books  of  account  included  the  right  to  take  extracts  therefrom  . 
Matter  of  Martin,  41  N.  Y.  St.  Rep  ,  409;  though  it  contains  no  provision,  In  ex- 
press language,  to  that  effect.  Id.  But  such  right  is  conferred  expressly  by 
sect.  29  of  this  act. 

The  directors,  if  deprived  of  the  possession  of  the  stock -book  of  the  company, 
may  open  a  new  one,  making  it  as  far  as  possible  a  copy  of  the  old  book  Hcho- 
harie  Valley  R.  R.  Co.,  12  Abb.,  N-  S.,  394.  The  inspectors  of  election  may,  in  tuch 
case,  properly  refer  to  the  new  stock-book  to  ascertain  who  are  voters,  id.  But, 
if  the  old  book  is  produced,  the  record  therein  must  govern  in  reference  to  trans- 
fers therein  before  the  new  book  was  opened.  Id. 

The  books  of  account  of  a  corporation  are  not  competent  evidence,  of  themselves, 
to  establish  an  account  or  claim  against  a  trustee  or  stockholder  in  an  action 
brought  in  behalf  of  the  corporation.  Rudd  v.  Robinson,  126  N.  Y.,  ife  ;  30  N. 
Y.  St.  Rep.,  500  ;  Hager  v.  Cleveland,  36  Md.,  476  ;  Hill  v.  Manchester,  etc.,  W. 
W.  Co.,  5  B.  &  Adol.,  866  ;  Haynes  v.  Brown.  36  N.  H.,  545  ;  Chenango  Bridge 
Co.  v.  Lewis,  63  Barb.,  Ill  ;  Olney  v.  Chadsey,  7  R.  I.,  224  ;  Wheeler  v.  Walker, 
45  N.  H.,  355 ;  Pearsall  v.  W.  U.  T.  Co.,  35  N.  Y.  St.  Rep.,  307.  A.  director  or 
stockholder  is  not  charged  with  actual  knowledge  of  the  entries  made  in  the  books 
of  the  company.  Rudd  v.  Robinson,  ante. 

It  is  the  general  rule  that  the  books  of  the  company,  containing  the  transactions 
of  the  corporation,  are  admissible  in  evidence  in  respect  to  such  transaction* 
against  officers  and  members  of  the  corporation.  Billings  v.  Trask,  30  Hun,  314. 
But  it  is  very  doubtful  whether  this  rule  can  be  extended  to  make  the  private  ac- 
counts with  the*  individuals  dealing  with  the  corporation,  whether  themselves  stock- 
holders or  not,  evidence  of  indebtedness  to  charge  stockholders  or  officers  with 
liability  to  penalties.  Id.  If  admissible,  it  is  not  conclusive,  but  subject  to  «x- 
planation  and  rebuttal.  Id. 

See  further,   on  the  examination  of  corporate  books,   Matter  of 
Hun,  557 

Where  the  officers  of  a  corporation  on  three  different  days  refused  a  stock- 
kolder  permission  to  inspect  the  stock  book,  it  constituted  but  one  offense.  Cox 
v.  Paul,  175  N.  Y.,  328. 

Section  applies  to  stockholder  in  National  Bank.      People  ex  rel.  Lorge  v. 
Consol.  Nat.  Bank.  105  App.  Qiv.  409. 

Stockholders  have  absolute  right  to  inspection  of  stock  book,  regardless 
their  motives.  People  ex  rel.  Callahan  v.  Keeseville,  etc.,  Co.,  106  App.  Div.  349. 
Penalty,  etc.,  is  not  cumulative.     Walcott  v.  Little,  46  Mis.  96. 

§  30.  Annual  report  to  secretary  of  state.— Every  domestic  stock  cor- 
poration and  every  foreign  stock  corporation  doing  business  within  this  state, 
except  moneyed  arid  railroad  corporations,  shall,  annually,  during  the  montl 
January,  or'  if  doing  business  without  the  United  States,  before  the  f 
of  May,  may  make  a  report  as  of  the  first  day  of  January,  which  will  state: 

Lt   I 


STOCK  CORPORATION  LAW. 

1.  The  amount  of  its  capital  stock,  and  the  proportion  actually 

issued. 

2.  Tlie  amount  of  its  debts  or  an  amount  which  they  do  not 

exceed. 

3.  The  amount  of  its  assets  or  an  amount  which  its  assets  at 

least  equal. 

4.  The  names  and  addresses  of  all  the  directors  and  officers  of 
the  company,  and  in  the  case  of  a  foreign  corporation,  the  name 
also  of  the  person  designated  in  the  manner  prescribed  by  the 
code  of  civil  procedure,  as  a  person  upon  whom  process  against 
the  corporation  may  be  served  within  this  state. 

Such  report  shall  be  made  by  the  president  or  a  vice-president 
or  the  treasurer  or  a  secretary  of  the  corporation  and  shall  be 
filed  in  the  office  of  the  secretary  of  state.  It'  .such  report  be  not 
so  made  and  filed,  any  such  officer  who  shall  thereafter  neglect  or 
refuse  to  make  and  to  file  such  report,  within  ten  days  after 
written  request  so  to  do  shall  have  been  made  by  a  creditor 'or 
by  a  stockholder  of  the  corporation,  shall  fovfrit  to  the  people  the 
sum  of  fifty  dollars  for  every  day  he  shall  so  neglect  or  refuse. 

Amended  by  eh.   354  of   1901.     In  effect   April   16,   1901. 
.     Amended  by  ch.  415  of  1905.     lu  effect  September  1,  1905. 

Former  section  30,  as  amended  by  laws  1892,  chap.  2,  farther  amended. 

Se«  section  12,  chap.  40  of  1848,  section  18,  chap,  till  of  1875,  and  Motion  1, 
chap.  208  of  1884,  now  repealed. 

As  to  annual  report,  under  this  section,  see  N.  Y.  Law  Review,  No.  1,  vol.  1, 
pp.  13-14. 

The  object  of  this  section  is  stated  in  Cincinnati  Cooperage  Co.  v.  O'Keefe,  44 
Hun.  64. 

The  purpose  for  which  the  annual  reports  are  required,  stated.  Pier  v.  Hanmorc, 
M  N.  Y.,  101 ;  Walton  «.  Godwin,  58  Hun,  91  ;  33  N.  Y.  St.  Rep.,  886 ;  Torbett  TV 
Godwin,  41  N.  Y.  St.  Rep.,  323. 

AH  soon  as  a  director  parts  with  all  beneficial  interest  in,  and  control  over,  the 
stock  which  the  statute,  section  2,  chap.  567  of  1890,  requires  him  to  hold,  and 
requests  the  officers  of  the  corporation  to  make  a  proper  transfer  of  such  stock  on 
the  hooks  of  the  company,  he  ceases  to  be  a  director,  and  ie  not  liable  to  creditors 
by  reason  of  any  subsequent  failure  to  file  the  report  under  this  section.  Chemical 
Nat.  Bk.  t>.  Colwell.  43  N  Y.  St.  Rep.,  876. 

A  corporation  is  not  liable  for  the  acts  of  its  trustees,  done  prior  to  the  filing  of 
the  articles  of  incorporation  and  not  ratified  by  it.  Berridge  r>.  Abernethy,  24 
W.  Dig.,  513. 

The  filing  of  the  certificate  in  the  county  clerk's  office,  immediately  followed  by 
user,  renders  the  company  a  corporation  de  facto,  and  imposes  upon  it  the  duty 
of  making  and  publishing  a  report.  Meridan  Tool  Co.  v  Morgan,  1  Abb.  N.  C., 
125  n. 

The  duty,  imposed  by  this  section,  of  making  and  filing  an  annual  report,  is  a 
corporate  duty.  Cornell  v.  Roach,  101  N.  Y.,  373.  This  duty  is  not  cast  upon 
the  tmstees,  either  as  such  or  in  their  individual  capacity.  Id. 

No  penalty  will  be  imposed  under  this  section  save  in  cases  where  the  plain 
language  of  the  section  requires  it.  Whitaker  v.  Masterton,  106  N.  Y..  277  ;  Whit- 
ney Arms  Co.  v.  Barlow,  63  id.,  62;  Wiles  v.  Suydam,  64  id.,  173;  Bonnell  v. 
Griswold,  80  id.,  128  ;  Brackett  v.  Griswold,  103  id.,  425. 

Where  a  failure  to  tile  the  annual  report  has  occurred,  the  moment  the  corpo- 
ration creates  the  debt,  a  trustee  becomes  liable  to  pay  the  pnme.  Chapman  v. 
Comsto^k,  58  Hun,  325  He  h«H  incurred  the  statutory  ppnnlty,  and  remains* 
linMo  diiHu-r  tho  next  three  years  ensuing.  Id.  At  the  end  of  the  three  years, 
the  short  statute  of  limitations  becomes  a  bar  to  the  creditor's  right  of  recovery. 
Id.;  Duckworth  v.  Roach,  81  N.  Y.,  49.  Neither  the  continuance  of  the  default, 
nor  subsequent  omissions  on  the  part  of  the  company  to  make  a  report,  has  the 
•fleet  to  renew  the  old  liability,  create  a  new  right  of  action,  er  stay  the  running 
of  the  statute  of  limitations.  Id.;  Rector,  etc.,  v.  Vanderbilt,  98  N.  Y.,  176. 

28 


STOCK  CORPORATION  LAW. 

Upon  the  default  of  a  company  to  report,  all  the  trustees  then  in  office  are  jointly 
and  severally  liable  for  all  the  debts  of  the  company  then  existing,  whether  con- 
tracted by  them  or  their  predecessors,  and  for  all  that  may  be  subsequently  con- 
tracted during-  their  continuance  in  office  until  such  report  is  made.  Vincent  v. 
Sands,  42  How.,  231;  aff'd  58  N.  Y.,  672. 

Trustees,  who  upon  such  default,  retire  from  office,  are  liable  for  all  then  exist- 
ing, but  for  no  subsequent  debts  of  the  company.  Vincent  •».  Sands,  42  How.. 
231  ;  aff'd  58  N.  Y.,  672. 

Under  section  18,  chap.  611  of  1875,  a  trustee  could  escape  the  consequences  of 
an  omission,  on  the  part  of  the  company,  to  make  and  file  the  report,  by  himself 
subsequently  and  within  a  fixed  time  filing  a  certificate  or  report.  Butler  v. 
Smalley,  101  N.  Y.,  71  ;  and  a  similar  exemption  is  made  by  the  provisions  of  this 
section. 

A  trustee  is  liable  for  a  default  in  filing  the  annual  report  which  he  can  not  con- 
trol, unless  he  makes  and  files  a  report  within  the  time  and  in  the  form  required 
in  the  latter  part  of  this  section.  Vincent  v.  Sands,  42  How.,  231  ;  aff'd  58  N.  Y., 
672.  This  is  a  saving  clause  intended  to  protect  the  innocent,  and  willing  trustee 
from  personal  liability. 

Their  successors,  by  promptly  obeying  the  requirements  of  this  section,  may 
escape  all  liability.  Vincent  v.  Sands,  42  How.,  231 ;  afTd  58  N.  Y.,  C72.  If  they 
continue  the  default  till  the  next  January,  they  are  liable  for  the  debts  contracted 
during  their  administration  up  to  that  time,  and  for  no  other,  unless  they  then  and 
there  make  default.  Id.  In  the  latter  case,  they  become  liable  for  all  the  debts 
then  existing.  Id. 

The  members  of  successive  boards  of  trustees  may  become  liable  for  the  same 
debts,  by  reaso  i  of  the  successive  defaults.  Vincent  v.  Sands,  42  How.,  231 ; 
aff'd  58  N.  Y.,  672 ;  Boughton  v.  Otis,  21  id.,  261 ;  Shaler  &  H.  Q.  Co.  v .  Bliss,  27 
id.,  297;  aflPg  34  Barb.,  309;  12  Abb.,  470;  Garrison  v.  Howe,  17  N.  Y.,  458; 
Miller  v.  White,  57  Barb.,  504. 

When  directors  of  business  corporation  are  liable  for  failure  to  file  annual  report, 
etc.  P.  E.  P.  Co.  v.  Coursey,  32  N.  Y.  St.  Rep.,  748. 

To  make  a  trustee  personally  liable  for  the  debts  of  the  corporation,  three  things 
must  concur :  the  trusteeship,  the  neglect  to  publish  the  annual  report,  and  the 
debt.  Chandler  y.  Hoag,  2  Hun,  613 ;  aff'd  63  N.  Y.,  634. 

A  trustee's  liability  depends  upon  the  existence  of  the  corporate  debt,  a  default 
in  making  the  report,  and  the  trusteeship.  Rector,  etc.  v.  Vanderbilt,  20  W.  Dig^ 
488;  Shaler,  etc.,  Co.  v.  Bliss,  27  N.  Y.,  297 ;  Duckworth  v.  Roach,  81  id.,  49. 

Recovery  in  actions  under  this  section  is  not  in  any  respect  based  upon  the  theory 
of  affording  compensation  to  the  creditor  for  damages  sustained  by  reason  of  th« 
omission  to  make  and  file  a  report.  Stokes  v.  Stickney,  96  N.  Y..  323 ;  Wiles  v. 
Suydam,  64  id.,  173;  Easterly  v.  Barber,  65  id.,  252  ;  Knox  v.  Baldwin,  80  id.,  610  ; 
Veeder  v.  Baker,  83  id.,  156  ;  Pier  v.  George,  86  id.,  613. 

An  action  under  this  section  is  one  to  enforce  a  penalty.  Victory  W.  P.  Co.  v. 
Beecher,  97  N.  Y.,  651 ;  Merchants'  Bk.  v.  Bliss,  35  id.,  412 ;  Jones  t>.  Barlow,  62 
id.,  202 ;  Whitney  Arms  Co.  v.  Barlow.  63  id.,  62  ;  Wiles  v.  Suydam,  64  id.,  173  ; 
Brice  v.  Platt,  80  id.,  379  ;  Knox  v.  Baldwin,  id.,  CIO ;  Easterly  v.  Barber,  65  id., 
252  ;  Veeder  v.  Baker,  83  id.,  156  ;  Pier  v.  George,  86  id.,  613  ;  Roach  v.  Duck- 
worth, 95  id..  391  ;  Stokes  v.  Stickney,  96  id.,  323  ;  Whitaker  v.  Masterton,  106  id., 
277  ;  Brackett  v.  Griswold,  103  id.,  425  ;  Gadsden  v.  Woodward,  id.,  242. 

The  recovery  allowed  by  this  section  against  trustees  is  a  penalty.  Victory  W. 
P.  Co.  v.  Beecher,  26  Hun,  48  ;  Merchants'  Bk.  v.  Bliss,  35  N.  Y.,  412  ;  Garrison 
v.  Howe,  17  id.,  458;  Adams  v.  Mills,  60  id.,  536,  553;  McHarg  v.  Eastman,  35 
How.,  205  ;  7  Robt.  137. 

The  liability  of  trustees,  under  this  section,  is  in  the  nature  of  a  penalty  or 
punishment  for  the  omission  of  a  duty.  Shaler  &  H.  Q.  Co.  v.  Bliss,  34  Barb.,  309  ; 
aff'd  27  N.  Y.,  297.  It  attaches  to  the  individuals  and  not  to  the  office.  Id. 

The  liability  imposed  upon  trustees  of  manufacturing  companies  for  neglecting 
to  make  and  file  an  annual  report,  is  in  the  nature  of  a  penalty  for  misconduct  in 
office.  Dabney  v.  Stevens,  40  How.,  341;  Bird  v.  Hayden,  2  Abb.,  N.  8.,  61; 
McHarg  v.  Eastman,  35  How.,  205  ;  Merchants'  Bank  •».  Bliss,  35  N.  Y.,  412. 

The  annual  report  must  be  filed  each  year  after  the  organization  of  the  corpora- 
tion. Jones  v.  Barlow,  62  N.  Y.,  202.  The  fact  that  it  has  not  commenced  busi- 
ness at  the  time  prescribed  for  such  filing,  is  no  excuse  for  an  omission  BO  to  do.  Id. 

A  report,  professedly  incompliance  with  this  section,  will  receive,  in  the  absence 

29 


STOCK  CORPORATION  LAW. 

of  any  evidence  of  an  attempt  to  deceive  or  to  evade  the  statute,  a  liberal  inter- 
pretation,  and  the  benefit  of  any  doubt  as  to  its  true  intent  and  meaning  will  bo 
given  to  the  trustees  sought  to  be  charged.  Whitney  Arms  Co.  •».  Barlow,  68 
N.  Y.,  62. 

A  report,  signed  by  a  majority  of  the  actual  trustees  of  a  corporation,  is  a  suffi- 
cient compliance  with  the  requirement  of  this  section.  Wallace  &  Son  v.  Walsh, 
52  Hun,  328. 

Vacancies  may  be  brought  about  by  resignations,  and  the  number  of  trustees  in 
this  manner  reduced.  Wallace  &  Son  v.  Walsh,  52  Hun,  328.  The  stockholders 
may  accept  the  situation  and  subsequently  elect  a  less  number.  Id.  The  number 
I  rescribed  in  the  original  certificate  may  be  thus  abandoned  and  legally  reduced. 
Id.;  S.  C.,  125  N.  Y.,  26. 

To  meet  the  requirements  of  this  section  it  is  not  necessary  that  the  annual  re- 
port shall  be  filed  within  twenty  days  from  the  first  of  January.  Cameron  v.  Sea- 
man. 09  N.  Y.,  396.  It  is  sufficient,  when  the  report  is  prepared,  signed  and 
verified  within  such  time,  and  filed  as  soon  as  practicable  thereafter.  Id. 

The  provisions  of  this  section,  as  to  time  of  making  and  filing  the  report,  is  not 
complied  with  by  doing  so  within  twenty  days  before  Ihe  first  of  January,  though 
it  is  regular  in  other  respects.  Cincinnati  C.  Co.  v.  O'Keefe,  120  N.  Y.,  603.  The 
report  must  be  made  between  the  first  and  twentieth  days  of  January  inclusive  in 
each  year.  Id. 

Good  faith  on  the  part  of  the  directors  in  making  and  filing  the  report  prema- 
turely is  no  defense  to  the  liability  imposed  upon  them  for  non-compliance  with 
this  provision.  Cincinnati  C.  Co.  v.  O'Keefe,  120  N.  Y.,  603. 

The  limitation  of  twenty  days  applies  only  to  the  act  of  making,  and  not  to  the 
act  of  filing  the  report.  Butler  v.  Smalley,  101  N.  Y.,  71.  As  to  the  latter  act,  the 
section  is  directory.  Id.  The  law,  in  the  absense  of  an  express  provision  on  the 
subject,  implies  that  the  filing  shall  be  within  a  reasonable  time  after  the  twenty 
days.  Id.  This  requirement  exacts  prompt  performance  and  diligent  action  on 
the  part  of  the  trustees.  Id.  This  rule  leads  to  an  inquiry  in  any  given  caae, 
whether  the  party  on  whom  the  duty  is  imposed  is  shown  to  be  in  -default.  Id.  5 
Cameron  v.  Seaman,  69  N.  Y  ,  396.  In  the  absence  of  want  of  good  faith  and  active 
diligence,  a  trustee  will  not  be  subjected  to  a  penalty,  provided  the  thing  required 
is  actually  done  at  a  reasonable  time,  having  regard  to  the  nature  and  circum- 
stances of  the  performance.  Butler  v.  Smalley,  101  N.  Y.,  71. 

Under  the  former  statute,  the  report  had  to  be  both  filed  and  published  ;  Gilder- 
sleeve  v.  Dixon,  6  Daly,  76  ;  but  filing  alone  is  sufficient  under  this  section. 

A  failure  to  file  the  report  within  a  reasonable  time  after  the  twenty  days  al- 
lowed by  this  section  for  making  it,  is  of  itself  a  sufficient  violation  of  the  act  to 
subject  the  trustees  to  the  penalty.  Butler-?).  Smalley,  49  Supr  ,  492.  Where 
there  is  no  obstacle  or  excuse  offered  for  the  delay  in  such  case,  the  trustees  are 
liable  without  regard  to  the  question  of  their  good  faith.  Id. 

The  requirement  of  this  section  is  not  satisfied  by  a  filing  in  the  month  of  Decem- 
ber previous,  although  done  within  twenty  days  before  the  first  of  January. 
Cincinnati  Cooperage  Co.  V.  O'Keefe,  44  Hun,  64. 

Where  the  acting  board  of  trustees  have  filed  a  duly  signed  and  certified  annual 
report  within  the  prescribed  time,  it  is  a  compliance  with  the  letter  and  spirit  of 
the  law.  Wallace  v.  Walsh,  125  N.  Y.,  26.  In  such  case,  it  is  not  competent  for 
a  creditor  to  show  that  some  of  the  acting  trustees  were  not  duly  elected  or  for 
some  reason  were  disqualified  from  acting,  or  to  claim  that,  by  reason  of  a  non- 
performance  or  an  irregularity  in  the  performance  of  some  prior  duty  enjoiiifd 
upon  the  stockholders,  said  board  had  no  authority  to  perform  the  general  duties 
required  of  them  as  agents  of  the  corporation.  Id.  \ 

A  report  made  by  a  corporation  under  this  section,  if  signed  by  seven  trustees,  is 
in  this  respect  a  valid  report.  Cornell  v.  Roach,  101  N.  Y.,  373  ;  section  2,  chap.' 
BK7  of  1800. 

An  annual  report,  signed  by  two  trustees,  where  the  certificate  of  incorporation 
was  signed  by  seven  and  acknowledged  by  nine  trustees,  does  not  satisfy  the  pro- 
visions of  this  section,  unless  it  is  shown  by  an  official  record  that  the  number  of 
trustees  has  been  sufficiently  reduced  by  resignation  or  otherwise.  Westerfield  t>. 
Radde,  67  How..  204. 

Where  there  are  five  trustees  of  a  corporation,  of  which  the  president  is  one,  a 
report,  signed  by  the  president  and  two  trustees,  complies  with  the  statute. 
Glen'e  F.  P.  Co.  •».  White,  18  Hun,  214. 

30 


STOCK  CORPORATION  LAW. 

A  statement  in  the  report  that  the  amount  of  its  existing  debts  does  not  exc««d 
?7fc-:39,  is  sufficiently  specific.  Glen's  F.  P.  Co.  v,  White,  18  Hun,  214. 

A  verification  of  the  report  by  the  president  to  the  effect  that  it  is,  in  all  respects, 
true  to  the  best  of  his  knowledge  and  belief,  is  sufficient.  Glen's  P.  P.  Co  v 
White,  18  Hun,  214. 

The  verification  to  a  report  in  the  following  language  :  "Swoi-n  to  before  me  this 
l:?th  Jay  of  January,  1870,  Charles  W.  Anderson,  Notary  Public,  New  York 
County,"  was  held  sufficient,  where  the  report  was  signed  by  the  president  of  the 
corporation  and  actually  verified  by  him  before  a  proper  officer.  Bormell  ». 
(}riBwold,-80  N.  Y.,  128. 

It  is  not  necessary,  under  this  section,  to  specify  in  the  report  how  much  of  th« 
capital  stock  was  paid  in  cash  and  what  amount  in  property.  Whitaker  t>.  Ma«- 
terton,  106  N.  Y.,  277. 

'A  statement,  from  which  it  can  not  be  determined  what  proportion  of  the  capital 
stock  has  been  paid  in  in  cash,  and  how  much  has  been  issued  for  property,  ia 
defective.  Glen's  F.  P.  Co.  t>.  White,  18  Hun,  214.  See  Whitaker  v.  Masterton, 
21  W.  Dig.,  209;  Pier  v.  George,  17  Htm-  907. 

The  amount  of  cash  paid  in,  and  the  amount  of  stock  issued  for  personal  property 
transferred  to  a  corporation,  need  not,  under  this  act,  be  separately  specified  in 
the  annual  report  made  and  filed  by  the  trustees.  Whitaker  v.  Masterton,  106  N. 
Y.,  277.  Prior  to  the  enactment  of  chap.  510  of  1875,  the  report  was  required  to 
comply  with  both  chap.  40  of  1848  and  chap.  333  of  1853.  Pier  v.  George,  17 
Hun,  207  ;  Blake  v.  Wheeler,  18  id.,  496  ;  aff'd  80  N.  Y.,  128. 

Where  the  capital  stock  was  all  issued  in  payment  for  patent  rights,  a  report, 
made  and  filed,  stating  that  "the  amount  of  the  capital  stock  of  the  company, 
which  has  been  issued  for  patent  rights,  and  which  has  not  been  paid  in  cash,  is 
f300,000,"  which  is  the  amount  of  capital  stock,  is  a  sufficient  compliance  with  this 
section  to  save  the  trustees  from  liability.  Whitney  Arms  Co.  v.  Barlow,  63  N.  Y.,  62. 

A  person,  who  becomes  a  trustee  after  twenty  days  from  January  first,  is  bound, 
if  he  desires  to  avoid  personal  liability,  to  publish  the  annual  report.  Chandler 
u  Hoatf,  2  Hun,  613  ;  aff'd  63  N.  Y.,  624. 

This  section  makes  no  distinction  as  to  the  place  where  the  debts  shall  have  been 
contracted,  nor  does  it  distinguish  between  creditors  residing  in  this  or  in  other 
•tates.  Sears  1>.  Waters,  44  Hun,  101. 

A  judgment  of  record  against  a  corporation  ia  a  "  debt,"  for  which  the  trustees 
are  liable  under  this  section.  Lewis  v.  Armstrong,  8  Abb.  N.  C.,  385. 

A  gilk  of  bonds  by  the  company,  as  a  mere  gratuity,  does  not  constitute  a  debt 
against  it  in  such  a  sense  as  to  justify  a  recovery  against  the  trustees  under  this 
section.  Norris  v.  De  Wolf,  12  Hun,  666  ;  aff'd  76  N.  Y.,  597. 

The  provision  of  this  section  does  not  include  an  indebtedness  imposed  upon  the 
corporation  by  fraud  or  improper  practices  of  the  creditor.  Adams  v.  Mills,  60 
N.Y.,  533. 

Bonds,  issued  by  a  manufacturing  corporation,  and  to  the  knowledge  of  the 
holder  diverted  from  the  purpose  for  which  they  were  intended  and  authorized, 
are  not,  in  the  hands  of  such  holder,  a  debt  against  the  company,  within  the  mean- 
ing of  this  section.  Kirkland  v.  Kelle,  99  N.  Y.,  390. 

Under  the  statute  of  1848,  it  was  held  that  certain  kinds  of  liability,  which  must 
ultimately  ripen  into  "  debts,"  are  not  "  debts  "  within  its  meaning.  Cviatt  «. 
Hughes,  41  Barb.,  541 ;  Whitney  Arms  Co.  v.  Barlow,  68  N.  Y.,  34;  Victory  W. 
P.  Co.  v.  Beecher,  26  Hun,  48. 

The  "debts,"  for  which  the  trustees  are  made  liable  by  this  section,  do  not  in- 
clude, it  teems,  unliquidated  claims  for  breaches  of  contract  and  causes  of  action 
incidently  arising  or  resulting  therefrom,  which  the  company  might  meet  and  de- 
defeat  by  some  sufficient  defense.  Victory  W.  P.  Co.  ?>.  Beecher,  26  Hun,  48. 

This  liability  does  not  depend  upon  the  fact  that  he  was  a  trustee  when  the  debt 
was  incurred,  but  upon  his  having  been  a  trustee  when  the  default  in  filing  the  re- 
port occurred.  Bruce  v.  Platt,  80  N.  Y.,  379. 

This  section  does  not  render  trustees  liable  for  torts  committed  by  the  corpora- 
tion. Esmond  v.  Bullard,  16  Hun,  65  ;  aff'd  79  N.  Y.,  404. 

A  judgment  against  a  creditor  in  favor  of  the  corporation  operates  as  an  estop- 
pel in  an  action  upon  the  same  claim  against  its  trustees  because  of  failure  to  file 
the  annual  report.  Tyng  v.  Clarke,  9  Hun,  269. 

A  judgment  for  costs  against  a  corporation,  in  an  action  for  trespass  commenced 
by  it,  ia  such  a  debt  of  the  corporation  that  a  trustee  is  liable  therefor  under  this 

31 


STOCK  CORPORATION  LAW. 

••ction.  Allen  c.  Clarke,  108  N.  Y.,  269  ;  rev'g  43  Hun,  377.  The  trustee  mm 
show  that  the  recovery  was  either  collusive  or  fraudulent.  Id.  Though  sues 
judgment  may  not  be  conclusive  as  against  him,  it  is  at  least  prima  facie  evidence 
of  its  existence.  Id. 

A  judgment,  which  is  in  existence  as  a  debt  against  the  corporation  at  the  time 
the  default  in  filing  the  annual  report  happens,  is  a  debt  within  the  meaning  of 
this  section,  for  which  the  trustee  in  default  is  responsible.  Lewis  v.  Armstrong, 
8  Abb.  N.  C.,  385. 

Where  the  report  remains  unfiled  after  the  contingent  liability  of  the  company 
has  become  an  absolute  indebtedness  by  reason  of  due  notice  of  non-payment  of 
the  draft  by  the  acceptors,  this  section  imposes  upon  the  trustees  a  liability  there- 
for, which  a  holder  can  enforce  by  an  action.  National  Bank  v.  Fenton,  23 
Hun,  309. 

It  is  essential  to  aver,  in  pleading  under  this  section,  that  the  debt,  for  which 
the  trustee  is  sought  to  be  made  liable,  was  existing  at  the  time  the  default  was 
made,  or  that  it  was  contracted  afterwards  and  before  the  report  w*,s  published. 
Chambers  v.  Lewis,  28  N.  Y.,  4r)4. 

Where  there  is  no  obligation  giving  a  present  right  of  action  against  the  com- 
pany, there  is  no  debt  which  can  be  demanded  as  a  penalty  against  the  trustee. 
Rector,  etc.,  Ch.  v  Vanderbilt,  20  W.  Dig.,  488;  Jones  v.  Barlow,  62  N.  Y.,  202; 
Whitney  Arms  Co  v.  Same,  63  id.,  62 ;  68  id.,  34. 

Act  does  not  require  debt  to  be  due,  but  only  to  be  existing  at  time  of  default  in 
filing  report.  Carr  v.  Risher,  50  Hun,  147. 

The  liability  of  a  person  who  was  not  a  trustee  at  the  time  of  the  default,  but 
became  such  afterwards,  is  limited  to  debts  created  while  he  remains  trustee,  and 
while  the  default  continues.  Shaler  &  H.  Q.  Co.  t>.  Bliss,  27  N.  Y.,  297  ;  Garrison 
v.  Howe,  17  id.,  458;  Boughton  v.  Otis,  21  id.,  261. 

In  such  case,  the  debt  must  have  been  contracted  during  a  default,  or  have 
existed  at  the  time  of  a  subsequent  default.  Garrison  v  Howe.  17  N.  Y.,  458. 

This  liability  is  subject  to  the  same  conditions  and  qualifications  that  attach  to 
the  original  indebtedness.  Jones  v.  Barlow,  62  N.  Y.,  202.  Whatever  will  defeat 
or  abate  an  action  against  the  corporation  will  be  a  defense  to  the  trustees.  Id. 
They  are  only  liable  to  an  action  for  debts  actually  due,  and  for  which  a  present 
right  of  action  exists  against  the  company.  Id 

Causes  of  action  against  a  trustee,  arising  under  this  section  for  failure  to  file  a 
report,  and  under  section  31  of  this  act  for  filing  a  false  report,  may  be  properly 
united.  Bonnell  ?'.  Wheeler,  1  Hun.  332  ;  aff'd  68  N.  Y.,  294. 

The  burden  of  proof  is  upon  the  creditor  to  establish  that  the  debt  was  contracted 
by  the  corporation.  Dabney  v  Stevens,  40  Hun,  341. 

They  can  not  avail  themselves  of  a  defense  not  personal  to  them,  but  going  to 
the  foundation  of  the  claim  and  cause  of  action  against  the  corporation,  which 
would  not  be  available  in  its  favor.  Whitney  Arms  Co.  v  Barlow,  63  N.  Y.,  62. 

A  person,  who  is  named  as  a  trustee  in  the  certificate,  can  legally  act  as  trustee, 
though  he  does  not,  in  fact,  own  any  stock.  McDowall  v.  Sheehan,129  N.  Y.,200  ; 
41  N.  Y.  St.  Rep.  415 ;  Davidson  v.  Westchester  G.  L  Co.,  99  N.  Y.,  658. 

A  creditor,  who  has  consented  to  non-filing  of  report,  ran  not  take  advantage  of 
•uch  omission.  Carraher  v.  Mulligan,  54  Hun,  638 ;  28  N.  Y.  St.  Rep.,  439. 

A  trustee  can  not,  as  creditor  of  the  corporation,  maintain  an  action  against  his 
co-trustees  under  this  section.  Easterly  v.  Barber,  65  N.  Y.,  252.  This  rule  ap- 
plies also  to  one  who  has  acted  as  trustee,  though  not  legally  elected.  Id.  He 
can  not  repudiate  his  character  as  trustee  and  recover  from  those  with  whom  he 
has  acted.  Id. 

Where  a  debt  against  a  corporation,  owned  by  a  trustee,  is  assigned  by  him  ab- 
solutely for  value,  the  assignee,  on  a  subsequent  default  of  the  company  to  make  a 
report,  may  proceed  under  this  section,  though  the  assignor  continues  to  be  a 
trustee  up  to  the  time  of  such  default.  Cornell  v.  Roach,  101  N.  Y.,  373. 

An  action  can  not  be  maintained  against  a  trustee  under  this  section  by  the  as- 
signee of  a  demand,  which,  at  the  time  of  the  failure  to  file  the  report,  belonged 
to  the  president  of  the  company.  Bronson  v.  Dimock,  4  Hun,  614  ;  Briggs  v. 
Easterly,  62  Barb  ,  51. 

Where  the  debt  is  assigned  after  a  trustee  has  become  personally  liable  under 
this  section,  the  assignee  may  maintain  an  action  to  enforce  such  personal  liability. 
Pier  v.  George,  14  Hun,  568  ;  Bolen  v.  Crosby,  49  N.  Y.,  183. 

The  report  is  the  act  of  the  trustees,  and  the  duty  of  making  it  is  devolved  upon 

32 


STOCK  CORPORATION  LAW. 

them.  Bolen  v.  Crosby,  49  N.  Y.,  183.  The  secretary  can  not  subscribe  to  H 
the  names  of  the  trustees,  or  verify  it  in  any  way  to  make  it  the  act  of  the  corpora- 
tion and  a  compliance  with  the  statute,  BO  as  to  relieve  the  trustees  from  their  duty, 
or  the  liability  resulting  from  an  omission  to  perform  it.  Id.  He  is  not  charge- 
able with  the  consequences  of  such  an  omission,  nor  precluded  from  maintaining 
an  action  to  enforce  the  personal  liability  of  the  trustees  under  this  section.  Id. 

The  liability  under  this  section  may  be  enforced  by  a  creditor  who  is  a  stock- 
holder, aa  well  as  by  an  outside  creditor.  Sanborn  v.  Lefferts,  58  N.  Y.,  179. 

A  cause  of  action  under  this  section  is  assignable.  Bonnell  v.  Wheeler,  3  T.  & 
C.,  557;  aff'd68  N.  Y.,  294. 

A  cause  of  action  against  a  trustee  under  this  section  is  assignable,  and  may  b« 
enforced  by  the  assignee  of  the  creditor.  Bonnell  v.  Wheeler,  1  Hun,  332  ;  affd 
68  N.  Y.,  294. 

An  assignee  of  a  claim  against  the  corporation  may  maintain  an  action  against 
a  trustee  thereoi,  under  this  section.  Pier  e.  George,  86  N.  Y.,  613. 

The  assignment  of  a  judgment  against  a  corporation,  carries  with  it  the  claim  or 
debt  upon  which  it  is  founded,  and  all  rights  and  remedies  for  the  recovery  and 
collection  of  such  claim  or  debt,  including  the  remedy  given  by  this  section  against 
the  trustees.  Bolen  v.  Crosby,  49  N.  Y.,  183. 

A  creditor  trustee  can  not  alone,  or  in  connection  with  his  co-partners,  nor  can 
his  assignee,  maintain  an  action  under  this  section.  Knox  v.  Baldwin,  80  N.  Y., 
«10  ;  Briggs  v.  Easterly,  62  Barb  ,  51  ;  Bronson  c.  Dimock,  614. 

In  case  of  an  assignment  of  a  corporate  debt,  a  release  of  one  of  the  trustees  by 
the  assignor,  after  the  releasee  has  notice  of  the  transfer,  will  not  operate  to  defeat 
the  claim  of  the  assignee.  Bolen  v.  Crosby,  49  N.  Y.,  183. 

The  right  of  a  pledgee  of  corporate  bonds,  hypothecated  to  secure  a  loan,  is  not 
precisely  the  same  as  that  of  an  owner,  where  the  pledger  is  also  one  of  the 
trustees,  and  liable  with  the  others  for  not  making  the  report.  Roach  v.  Duck- 
worth, 95  N.  Y.,  391.  He  can  enforce  the  bonds  against  the  trustees  only  so  far 
as  is  necessary  to  his  indemnity.  Id.  To  go  beyond  that  point,  would  result  in 
benefiting  the  pledger  trustee.  Id. 

Directors  are  not  liable  for  failure  to  file  annual  report,  where  corporation  ceases 
to  exist  before  the  debt  becomes  due.  Gold  v.  Clyne,  58  Hun,  419. 

Debt  can  not  be  contracted  until  liability  has  been  incurred.     Id. 

The  omission  to  publish,  in  the  first  twenty  days  of  January,  the  statement 
required  by  this  section  imposes  a  personal  liability  upon  the  trustees  in  office  for 
all  the  corporate  debts  existing  while  they  are  in  default.  Boughtou  u.  Otis,  21 
N.  Y.,  261.  But,  in  such  case,  they  are  not  liable,  it  seems,  for  debts  contracted 
after  their  retirement  from  office.  Id.  A  trustee,  coming  into  office  after  a  default, 
is  personally  liable  for  such  debts  only  as  are  contracted  while  he  is  in  office,  and 
before  a  report  is  made  and  published.  Id. 

Trustees,  who  have  neglected  to  make  their  report,  are  not  personally  liable  for 
debts  contracted  until  after  they  have  ceased  to  be  trustees  of  the  company.  Shaler 
&  H.  Q.  Co.  v.  Bliss,  34  Barb.,  309  ;  aflPd  27  N.  Y.,  297. 

The  fact  that  a  stockholder  has  been  elected  a  trustee  does  not  alone  invest  him 
with  that  character  so  as  to  make  him  liable  under  this  section.  Cameron  v.  Sea/- 
man,  69  N.  Y.,  396.  There  must  be  an  acceptance  of  the  office  on  his  part,  either 
express  or  to  be  implied  from  the  circumstances.  Id. 

Under  this  section  it  is  not  enough  to  show  that  a  person  was  elected  a  trustee, 
but  some  direct  and  positive  act  by  him,  assenting  to  this  act  of  the  stockholders, 
must  also  be  proved.  Osborne  &  C.  Co.  v.  Croome,  14  Hun,  164  ;  afFd  77  N.  Y., 
629  ;  People  v.  Batchelor,  22  id.,  12S  ;  Cameron  v.  Seaman,  69  id.,  396. 

Where  a  corporation  has  never,  in  fact,  commenced  business,  and,  before  the 
time  prescribed  for  making  an  annual  report  has  elapsed,  the  object  for  which  it 
was  formed  becomes  impossible  for  it  to  accomplish,  and  there  is  neither  ability 
nor  intention  on  its  part  at  any  time  to  prosecute  its  business,  it  is  not  required  to 
make  such  report,  and  its  trustees  are  not  liable  to  creditors,  because  of  its  failure 
so  to  do.  Kirkland  v.  Kille,  99  N.  Y.,  390. 

Trustees,  who  hold  over  and  continue  in  office,  are  subject  to  all  the  liabilities 
imposed  by  law  upon  trustees  regularly  and  annually  chosen.  Reed  v.  Keese,  60 
N.  Y.,  616  ;  Deming  v.  Puleston,  55  id.,  655  ;  Jan  v.  Lefferts,  16  Abb.,  N.  8.,  42. 

A  trustee,  who  was  not  legally,  but  was  in  form,  elected  and  acted  as  such,  is 
liable  for  a  failure  to  file  a  report  from  the  time  of  his  election  to  the  time  of  his 
resignation.  Halstead  v.  Dodge,  51  Supr.,  169.  The  fact  that  he  was  not  a  stock- 
holder is  no  defense.  Id.;  s.  c.,  1  How.,  U.  8.,  170. 

33 


STOCK.  CORPORATION  LAW. 

A  trustee  may  resign  and  relieve  himself  from  liability  thereafter  incurred  by 
it,  though  the  resignation  is  not  acted  upon  by  the  board  of  trustees  or  entered  in 
the  books  of  the  corporation.  Blake  v.  Wheeler,  18  Hun,  496  j  aff'd  80  N.  Y., 
128 ;  Chandler  •».  Hoag,  2  Hun,  613 ;  aff'd  63  N.  Y.,  624. 

It  is  not  necessary  for  trustees  to  resign  at  the  end  of  the  year,  in  order  to  pro- 
duce a  vacancy.  Van  Amburgh  V.  Baker,  81  N.  Y.,  46.  A  vacancy  would  come, 
in  such  case,  from  the  termination  of  their  terms  of  office.  Id.  Unless  they  con- 
tinue to  act,  after  such  time,  as  trustees,  they  are  not  liable  for  not  making  and 
filing  a  report  in  the  following  January.  Id.;  Deming  v.  Puleeton,  55  N.  Y.,  655 ; 
Reed  v.  Keese,  60  id.,  616  ;  379  Super.,  269  ;  Vincent  v.  Sands,  33  id.,  511 ;  San- 
born  v.  LeflFerts,  58  N.  Y.,  179. 

A  tmstee  may  resign  his  trusteeship.  Squires  v.  Brown,  22  How.,  35.  In  case 
of  his  resignation,  he  does  not  become  liable  for  the  debts  of  the  company  on  the 
subsequent  default  or  neglect  of  the  remaining  trustees  to  make  and  tile  the 
annual  report.  Id.;  Boughton  v.  Otis,  29  Barb.,  196;  aff'd  21  N.  Y.,  261 ;  Shaler  & 
H.  Q.  Co.  v.  Bliss,  10  Abb.,  311  ;  Yeung  v.  N.  Y.  &  L.  I.  Co.,  id.,  229  ;  Garrison 
v.  Howe,  17  N.  Y.,  458  ;  Tracy  v.  Yates,  18  Barb.,  152. 

A  trustee,  who  resigns  after  the  incurring  of  the  debt,  but  before  the  default, 
is  not  liable.  Bruce  v.  Platt,  80  N.  Y.,  379.  It  is  not  necessary  for  him  to  give 
notice  to  the  public,  the  creditors  or  any  persons  other  than  his  associates,  of  his 
intention  to  resign,  or  of  his  resignation.  Id. 

A  trustee  has  power  to  resign,  and  its  acceptance  and  entry  in  the  minutes  of  the 
corporation  are  not  necessary  to  make  the  resignation  complete.  Chandler  v.  Hoag, 
2  Hun,  613  ;  aff'd  63  N.  Y.,  624. 

After  a  corporation  is  adjudged  a  bankrupt  and  its  entire  property  passes  into 
the  hands  of  an  assignee  in  bankruptcy,  no  report  is  necessary.  Bonnell  v.  Gris- 
wold,  80  N.  Y.,  128. 

Where  a  company  practically  abandons  its  business,  and  all  its  business  has 
been  sold  at  sheriff's  sale,  the  subsequent  failure  to  make  and  file  an  annual  report 
do«s  not  make  the  trustees  individually  liable  to  a  creditor  of  the'  company.  Wamg- 
ley  v.  Palmer,  I  N.  Y.  St.  Rep.,  307 ;  even  though  the  sheriff's  deeds  are  defec- 
tive, and  do  not  dejure  convey  the  title  to  the  property  out  of  the  coiporation.  Id. 

The  corporation,  on  the  appointment  of  a  receiver,  is  so  far  dissolved  that  there- 
after the  duty  is  no  longer  upon  the  trustees  to  make  the  annual  report.  Hugue- 
not N.  Bk.  v.  Studwell,  74  N.  Y.,  621.  Where  a  receiver  is  appointed  during  and 
before  the  expiration  of  the  twenty  days  in  which  the  trustees  are  required  to 
make  such  report,  they  are  not  liable  to  the  penalty  imposed  by  this  section.  Id. 

When  a  corporation,  so  far  as  the  liability  of  trustees  and  stockholders  is  con- 
cerned, may  be  deemed  to  be  dissolved.  Bruce  v.  Platt,  80  N.  Y.,  379;  Bradt  t). 
Benedict,  17  id.,  93  5  Slee  v.  Bloom,  9  Johns.,  456 ;  20  id.,  669 ;  Pennusian  v. 
Briggs,  Hopkins,  300;  Bank,  etc.,  v.  Ibbotson,  24  Wend.,  473;  Jones  v.  Barlow, 
63  N.  Y.,  202  ;  Garrison  v.  Howe,  17  id.,  458 ;  Huguenot  N.  Bk.  v.  Studwell,  74 
id.,  621 ;  Losee  v.  Bullard,  79  id.,  404  ;  Bonnell  v.  Griswold,  80  id.,  128  ;  Brinker- 
hoff  v.  Brown,  7  Johns.  Ch.,  217  ;  Sanborn  v.  Lefferts,  58  id.,  179. 

A  company,  whose  property  has  been  exhausted  by  legal  process,  and  which 
neither  is  doing  or  intending  to  do  any  other  act  in  furtherance  of  the  object  of  its 
incorporation,  may  be,  for  every  practical  purpose,  deemed  to  be  dissolved,  and 
its  obligation  to  file  a  report  terminated.  Bruce  v.  Platt,  80  N.  Y.,  379. 

The  fact  that  a  corporation  has  ceased  to  do  business  and  is  engaged  in  closing 
up  its  affairs,  is  no  excuse  for  a  failure  to  comply  with  the  requirement  of  this 
section  as  to  the  filing  of  a  report.  Sanborn  v.  Lefferts,  58  N.  Y.,  179.  In  the 
absence  of  any  legal  dissolution  of  the  company,  these  facts  do  not,  nor  does  knowl- 
edge upon  the  part  of  the  creditor  of  the  financial  condition  and  embarrassments 
of  the  corporation  affect  their  liability.  Id. 

Inability,  or  non-intention  to  continue  business,  excuses  trustees  from  making 
annual  report.  Carraher  v.  Mulligan,  28  N.  Y.  St.  Rep.,  439  ;  64  Hun.  638. 

The  mere  fact  of  an  application  by  the  attorney-general  at  the  instance  of  two  of 
the  trustees  for  the  dissolution  of  the  corporation  upon  grounds  undisclosed, 
where  half  of  the  trustees  actively  oppose  the  application,  does  not  relieve  them 
from  the  duty  of  making  and  filing  the  annual  report.  First  Nat.  Bk.  v.  Lamon, 
41  N.  Y.  St.  Rep.,  684  ;  rev'g  29  id.,  181.  Upon  this  point,  see  Sanborn  v.  Lef- 
ferts, 58  N.  Y.,  179  ;  Huguenot  Bk.  v.  Studwell,  74  id.,  621  ;  Losee  v.  Bullard,  19 
id.,  404  ;  Bruce  v.  Pl»tt,  80  id.,  379 ;  Van  Amburgh  v.  Baker,  id.,  46  ;  Kirkland  v. 
Kille,  99  id.,  390. 

84 


CTOCK  CORPORATION  LATT. 

Where  proceedings  have  been  initiated  for  the  dissolution  of  a  corporation,  on 
an  application  made  by  the  trustees  to  the  Attorney-General  before  the  expiration 
of  the  twentieth  day  of  January,  the  trustees  are  not  required,  in  order  to  shield 
themselves  from  personal  liability  for  the  corporate  debts,  to  make  the  annual 
report.  First  Nat.  Bk.  v.  Lamon,  65  Hun,  414  ;  Van  Amburgh  v.  Baker,  81  N.  T., 
46 ;  Huguenot  N.  Bk.  i>.  Studwell,  74  id.,  621  ;  Bruce  v.  Platt,  80  id.,  379  ;  Bank 
t>f  Poughkeepsie  v.  Ibbotson,  24  Wend.,  473  ;  Kirkland  v.  Kille,  99  N.  Y.,  390. 

The  trustees  are  neither  parties  nor  privies  to  a  judgment  by  the  creditor  againnt 
the  corporation.  Miller  v.  White,  50  N.  Y.,  137.  In  an  action  against  them  to 
enforce  their  liability  under  this  section,  proof  of  the  recovery  of  a  judgment 
against  the  company  ig  neither  conclusive  nor  prima  facie  evidence  of  the  d<;bt.  LI. 

A  judgment  against  the  corporation  is  not  conclusive  or  binding  upon  the  trustees 
in  an  action  against  them  undei  this  section,  as  to  the  existence  of  the  original 
cause  or  ground  of  action.  Kraft  v.  Coykendall,  34  Hun.  285  ;  Miller  v.  White,  50 
N.  Y  ,  137  ;  Stephens  v  Fox,  83  id.,  317  ;  Rorke  v.  Thomas,  56  id.,  565  ;  Jones  v. 
Barlow, .  202  ;  Esmond  v.  Bullard,  16  Hun,  67  ;  aff  'd  79  N.  Y.,  404;  Whit- 
ney Arms  Co.  i>  Barlow,  63  id.,  62. 

Under  this  section,  a  judgment  against  the  corporation  is  neither  necessary  to 
the  liability  of  the  trustees  nor  binding  upon  them.  Rorke  v.  Thomas,  56  N.  Y., 
565  ;  Kraft  v.  Coykendall,  34  Hun,  285.  Even  though  the  trustees  should  partici- 
pate and  conduct  the  defense  as  trustees,  they  would  not,  probably,  be  concluded, 
by  the  judgment  rendered  in  the  action,  in  another  suit  against  them  personally 
under  the  statute.  Id. 

An  action  against  a  trustee  under  this  section  must  be  founded  on  the  original 
claim  against  the  corporation,  and  not  upon  a  judgment  recovered  against  it. 
Esmond  v.  Bullard,  16  Hun,  65  ;  aff 'd  79  N.  Y.,  404.  Such  judgment  is  not  even 
prima  facie  evidence,  as  against  the  trustee,  of  the  existence  of  the  debt.  Id.; 
Miller  v.  White,  50  N.  Y.,  137 ;  Whitney  Arms  Co.  v.  Barlow,  63  N.  Y.,  62. 

In  an  action  against  a  trustee  to  enforce  his  personal  liability  under  this  section,  a 
judgment  against  the  company  is  not  even  prima  facie  evidence  of  the  existence 
of  the  debt,  as  against  the  trustee.  Esmond  v.  Bullard,  16  Hun,  65  ;  aff'd  79  N. 
Y.,  404  ;  Miller  v.  White,  50  id.,  137  ;  Whitney  Arms  Co.  v.  Barlow,  63  id.,  62. 

For  an  omission  to  file  a  report,  all  the  trustees  are  liable  under  this  section. 
Bonnell  v.  Griswold,  68  N.  Y.,  294. 

The  trustees  are  made  jointly  and  severally  liable  for  the  debts  of  the  company 
by  reason  of  the  omission  to  make  the  annual  report  required  by  this  section. 
Moag  v.  Lamont,  60  N.  Y.,  96. 

A  separate  action  is  given  to  each  individual  creditor,  by  the  words  of  this  sec- 
tion, for  his  separate  debt,  though  his  is  not  the  only  debt  against  the  corporation. 
Wiles  v.  Suydam,  16  Hun,  578. 

An  action,  under  this  section,  may  be  brought  against  such  trustees  as  the 
creditor  may  select,  and  the  non-joinder  of  the  others  constitutes  no  defense.  Hal- 
stead  t>.  Dodge,  51  Supr.,  169;  Strongs.  Sproul,  4  Daly,  326;  Quigleyv.  Walter, 
2  Sweeney,  175. 

As  many  actions,  under  this  section,  can  be  brought  against  the  trustees  as  can 
be  brought  against  the  corporation.  Roach  v.  Duckworth,  95  N.  Y.,  391.  A 
creditor  may  sue  all  the  trustees  successively  until  he  shall  obtain  satisfaction,  or 
he  may  at  the  same  time  commence  a  suit  against  each  trustee.  Id.  No  trustee 
can  properly  set  up  the  pendency  of  a  suit,  or  the  recovery  of  a  judgment,  against 
any  other  trustee  as  a  bar  to  a  recovery  against  him.  Id.  A  judgment  can  be 
enforced  only  against  the  trastee  who  is  defendant  in  the  action.  Id. 

Non-joinder  of  a  co-trustee  is  not  a'defense.  Nimmonsi).  Tappen,  2  Sweeney, 
652 

The  question  whether  the  trustees  will,  upon  payment  of  the  corporate  debt,  be 
abrogated  to  the  right  of  the  creditor  against  the  corporation  was  not,  though 
raised,  decided  in  Jones  v.  Barlow,  62  N.  Y.,  202. 

Under  chap.  510  of  1875,  all  the  other  trustees  are  bound  ratably  to  contribute 
to  the  amount  recovered  against  and  paid  by  the  co-trustee.  Roach  v.  Duck- 
worth, 95  N.  Y.,  391. 

An  action  under  this  section  does  not  abate  by  reason  of  the  death  of  the 
creditor,  though  it  will  abate  upon  the  death  of  the  defendant  trustees.  Zoller  v. 
O'Keeffe,  15  Abb.,  N.  C.,  483 ;  Bonnell  v.  Griswold,  id.,  470. 

It  was  held,  in  Bank  of  California  v.  Collins,  5  Hun,  209,  that  an  action  against 
a  trustee  under  this  section  did  not  survive  against  his  personal  representatives. 

35 


STOCK  CORPORATION  LAW. 

An  action  under  this  section  is  penal,  and  abates  upon  the  death  of  either  party 
before  verdict.  Blake  v.  Griswold,  104  N.  Y.,  013;  Brackett  v.  Same,  103  id., 
425  ;  Stokes  t>.  Stickney,  96  id.,  323.  See  semble  to  same  effect  inCarr  v.  Rischer, 
li<»  N.  Y.,  117. 

An  action,  under  this  section,  does  not  absolutely  abate  upon  the  death  of  the 
trustee  after  judgment.  Carr  v  Rischer,  119  N.  Y.,  117.  A  reversal  of  such 
judgment  by  the  general  term  does  not  extinguish  it  for  every  purpose.  Id. 
Though  a  new  trial  cannot  be  had,  the  judgment  maybe  restored  on  appeal  to  the 
court  of  appeals,  and  the  action  continued  for  that  purpose.  Id. 

Upon  the  death  of  the  trustee,  the  action  can  not  be  revived  against  his  personal 
representatives.  Stokes  v.  Stickney,  96  N.  Y.,  323. 

A  failure  to  tile  the  report  renders  the  trustees  liable  for  both  existing  and  sub- 
sequently contracted  debts.  Carley  v.  Hodges,  19  Hun,  187.  And  where  the 
failure  occurs  after  the  death  of  the  creditor,  the  trustees  are  personally  liable  to 
hia  executor.  Id. 

The  action,  under  this  section,  must  be  brought  within  three  years  from  the 
time  the  cause  of  action  accrued.  Merchants'  Bk.  v.  Bliss,  85  N.  Y.,  412 ;  Rector 
v  Vanderbilt,  98  N.  Y.,  170 ;  Shaler  &  H.  Q.  Co.  v.  Bliss,  27  N.  Y.,  297  ;  Duck- 
worth v.  Roach,  81  N.  Y.,  49;  Miller  v.  White,  50  N.  Y.,  137  ;  Losee  v.  Bullard, 
79  N.  Y.,  404. 

The  action,  under  this  section,  need  not  be  commenced  within  three  years  after 
the  debt  accrued  against  the  corporation.  Duckworth  v.  Roach,  81  N.  Y.,  49.  If 
the  debt  existed  and  might  have  been  the  subject  of  an  action  at  the  time  of  the 
alleged  default  in  complying  with  the  requirement  of  the  statute,  an  action  may 
be  commenced  at  any  time  within  three  years  thereafter.  Id.  See  Merchants' 
Bk.  v.  Bliss,  35  N.  Y.,  412  ;  Jones  v.  Barlow,  62  id.,  202. 

The  statute  of  limitations,  made  applicable  to  such  actions,  begins  to  run  only 
from  the  time  a  cause  of  action  accrues,  and  not  from  the  time  of  default  in  making 
the  report.  Jones  v.  Barlow,  62  N.  Y.,  202. 

The  fact  that  the  trustees  make  a  report  in  a  year  subsequent"  to  the  default, 
does  not  revive  their  liability.  Wamsley  v.  Palmer,  5  N.  Y.  St.  Rep.,  807.  It  is 
simply  evidence  that  they  consider  themselves  as  continuing  in  office.  Id. 

Neither  the  continuance  of  default  in  paying  a  debt  nor  subsequent  omissions  of 
the  company  to  make  annual  reports  can  renew  the  liability  of  a  trustee  for  such 
debt,  or  create  a  new  right  of  action,  after  it  has  been  barred  by  the  statute  of 
limitations.  Rector,  etc.,  v.  Vanderbilt,  20  W.  Dig.,  488. 

When  the  statute  of  limitations  begins  to  run  in  favor  of  a  trustee,  nothing 
subsequent  will  stop  it.  Rector,  etc.,  v.  Vanderbilt,  98  N.  Y.,  170. 

Nothing  can  be  presumed  against  the  trustees,  but  every  fact  necessary  to 
establish  their  liability  must  be  affirmatively  proved.  Tovey  v.  Culver,  54 
Supr.,  404. 

The  onus  is  upon  the  creditor,  in  an  action  under  this  section,  to  prove  the 
default.  Whitney  Arms  Co.  v.  Barlow,  68  N.  Y.,  34.  Nothing  can  be  presumed 
as  against  the  trustee.  Every  fact  necessary  to  establish  his  liability  must  be 
affirmatively  proved,  though  it  will  necessitate  the  proving  of  a  negative.  Id. 

Where  a  complaint,  under  this  section,  sets  out  a  copy  of  the  report  as  filed  and 
published,  and  alleges  that  it  does  not  comply  with  the  statute,  the  particular 
defects  therein  need  not  be  set  forth  in  the  complaint.  Glen's  F.  P.  Co.  v.  White, 
18  Hun,  214. 

In  an  action  under  this  section,  a  trustee  can  serve  an  unverified  answer  to  a 
duly  verified  complaint.  Gadsden  v.  Woodward,  103  N.  Y.,  242  ;  rev'g  38  Hun,  548. 

That  the  company  is  indebted  to  a  trustee,  is  no  defense  on  his  part  to  an  action 
by  a  creditor  under  this  section.  Morey  v.  Ford,  32  Hun,  446. 

In  an  action  under  this  section,  it  is  not  a  good  defense  that  the  trustee  is  him- 
self a  creditor  of  the  company  to  an  amount  equaling  his  stock.  Richards  v. 
Kinsley,  27  W.  Dig.,  372. 

A  trustee,  who  has  paid  a  creditor's  claim  after  judgment  in  an  action  against 
him  for  non-Sling  of  an  annual  report,  can  not  set  off  such  amount  in  reduction  of 
his  liability  under  section  57  of  this  act.  Veeder  v.  Mudgett,  95  N.  Y.,  295. 

In  such  action,  a  compulsory  reference  can  not  be  ordered,  though  the  only  issue 
is  as  to  indebtedness  of  the  corporation  on  a  long  account.  Hyatt  v.  Roach,  1  Abb, 
N  C.,  125. 

The  clerk  can  not,  in  an  action  under  this  section,  enter  judgment  on  default 
under  section  1212  of  the  Code.  Gadsden  v.  Woodward,  38  Hun,  548. 

36 


tSTOCK    COKl'OHAXiO.N    LAW. 

In  an  action  against  several  trustees,  where  process  is  served  only  on  ecm«  of 
them,  a  recovery  may  be  had,  and  judgment  entered,  in  form,  against  all,  but  to 
affect  only  the  individual  property  of  the  trustee  served  and  the  property  owned 
jointly  by  all.  Hoag  v.  Lamont,  60  N.  Y.,  96. 

The  recovery  of  a  judgment  on  a  corporate  claim  against  a  stockholder  under 
section  57  of  this  act  is  no  bar  to  an  action  on  the  same  claim  against  a  trustee 
under  thia  section.  Vincent  v.  Sands,  42  How.,  231 ;  aflPd  68  N.  Y.,  672. 

An  action  against  the  trustees,  under  section  30  of  this  act,  to  charge  them  with 
the  same  debt,  is  no  bar  to  an  action  to  charge  the  stockholders  under  this  section. 
Douglass  v.  Ireland,  73  N.  Y.,  100. 

The  mere  fact  of  being  a  director  and  stockholder  is  not  per  se  sufficient  to  hold 
a  party  liable  for  the  frauds  and  misrepresentations  of  the  active  managers  of  it 
corporation.  Arthur  v.  Griswold,  55  N.  Y.,  400.  That  the  name  of  a  person  wa» 
published  as  a  trustee,  and  a  certificate  of  stock  issued  to  him,  are  not  sufficient 
to  authorize  a  recovery  against  him  for  a  fraud  perpetrated  by  other  agents  and 
trustees  of  the  corporation.  Id. 

Chapter  354  of  1899  applies  to  foreign  corporations.     Staten  Islaml  Midland 
E.  Co.  v.  Hinchcliffe,  170  N.  Y.,  473.    See  also  Shepard  v.  Fulton,  171  N.  Y.,  184. 
Statement  verified  by  president  and  vice-president  not  sufficient.     Rhodes  v. 
Hinds,  79  App.  Div.,  379.     See  also  Stevenson  v.  Cowan,  84  App.  Div.,  135. 

Complaint  need  not  show  compliance  with  section  34.  Boynton  v.  Sprague, 
100  App.  Div.  443. 

As  to  corporations  doing  business  without  the  United  States,  see  Hoboken 
Beef  Co.  v.  Haiid,  104  App.  Div.  390. 

§  31.  Liability  of  officers  for  false  certificates,  reports  or  public  no- 
tices.— If  any  certificate  or  report  made  or  public  notice  given  by  the  officers  or 
directors  of  a  stock  corporation  shall  be  false  in  any  material  representation, 
the  officers  and  directors  signing  the  same  shall  jointly  and  severally  be  per- 
sonally liable  to  any  person  who  has  become  a  creditor  or  stockholder  of  the 
corporation  upon  the  faith  of  any  such  certificate,  report,  notice  or  any  ma- 
terial representation  therein  to  the  amount  of  the  debt  contracted  upon  the 
faith  thereof  if  not  paid  when  due,  or  of  the  damage  sustained  by  any  pur- 
cnaser  of  or  subscriber  to  its  stock  upon  the  faith  thereof.  The  liability  im- 
posed by  this  section  shall  exist  in  all  cases  where  the  contents  of  any  such 
certificate,  report  or  notice  or  of  any  material  representation  therein  shall 
have  been  communicated  either  directly  or  indirectly  to  the  person  so  becoming 
a  creditor  or  stockholder  and  he  became  such  creditor  or  stockholder  upon  the 
•  faith  thereof.  No  action  can  be  maintained  for  a  cause  of  action  created  by 
this  section  unless  brought  within  two  years  from  the  time  the  certificate,  re- 
port or  public  notice  shall  have  been  made  or  given  by  the  officers  or  directors 
af  such  corporation. 

Former  section  31  amended. 

See  section  15,  chap.  40  of  1848,  and  section  21,  chap.  611  of  1875,  now  repealed. 

As  to  liability  under  this  section,  see  N.  Y.  Law  Review,  No.  1,  vol.  1,  pp. 
14,  15. 

This  section  must  be  strictly  construed.  Torbett  v.  Godwin,  62  Hun,  407;  27 
Abb.  N.  C.,444. 

The  liabilities  imposed  upon  trustees  for  making  false  reports,  and  allowing  the 
indebtedness  of  the  corporation  to  exceed  its  capital  stock,  are  in  th«r  nature 
penal,  and  each  act  of  this  character  enters  into  and  becomes  a  separate  cause  of 
action.  Anderson  v.  Speers,  8  Abb.  N.  C.,  382. 

A  trustee,  who  has  not  signed  the  report,  is  not  liable  under  this  section.  Bonnell 
c.  Wheeler,  3  T.  &  C  ,  557. 

For  making  and  filing  a  false  report,  the  trustees  only,  who  do  the  act,  are  liable. 
Bonnell  v.  Griswold,  68  N.  Y.,  294  ;  and  only  such  of  this  number  as  know  it  to  be 
false.  Id.;  Pier  v.  Hanmore,  86  id.,  95. 

Director  is  officer  of   corporation.     Brand  ».  Godwin,  15  Daly,  456. 

Under  section  21,  chap.  611  of  1875,  the  term  "officers,"  was  held  to  include  the 
directors  or  trustees  of  a  corporation.  Torbett  v.  Eaton,  ante.  Section  31  of  this 
act,  has  made  express  mention  of  the  directors.  And  by  section  2,  chap.  561  of 
1890,  the  term  "directors  "  expressly  includes  trustees. 

37 


STOCK  CORPORATION  LAW. 

A  director  of  a  business  corporation  is  liable  for  all  of  its  debts,  without  limit  aa 
to  the  amount.  Richard  v.  Croker,  19  Abb.  N.  C.,  73. 

This  section  subjects  the  offending  trustee  to  all  the  debta  of  the  company  con- 
tracted while  he  is  a  trustee  thereof^  without  regard  to  the  amount  of  his  stock  and 
without  any  right  of  contribution.  Pier  v.  Hanmore,  ante. 

A  trustee  is  not  liable,  under  this  section,[for  debts  of  the  corporation  contracted 
before  the  report  was  made.  Torbett  r.  Godwin,  41  N.  Y.  St.  Rep.,  328. 

This  section  must  be  taken  to  mean  that,  as  to  debts  contracted  after  the  report 
IB  filed,  the  officers  who  signed  it  are  liable.  Torbett  v.  Godwin,  62  Hun,  407  ; 
27  Abb.  N.  C.,  444.  They  are  not  liable  for  claims  which  accrued  prior  to  the 
filing  of  the  report.  Id. 

Breach  of  contract  is  debt  within  this  section.  Brand  v.  Goodwin,  24  N.  Y.  St. 
Rep.,  305. 

The  complaint,  under  this  section,  must  allege  that  the  debt  was  contracted 
while  the  defendant  was  a  trustee.  Anderson  v.  Speers,  8  Abb.  N.  C.,  382. 

This  penalty  does  not  attach  when  the  stock  of  the  corporation  hu  been  issued 
in  payment  for  property,  though  this  fact  is  not  stated  in  the  report.  Bonnell  v. 
Griswold,  80  N.  Y.,  128. 

In  an  action  under  this  section,  where  the  statutory  certificate  states  that  the 
whole  of  the  capital  stock  has  been  paid  up  in  full  by  the  purchase  of  a  certain 
described  patent,  the  question  of  the  value  of  the  patent,  and  whether  it  was 
worth  the  amount  of  the  stock,  is  one  of  fact  for  the  jury,  even  though  such  cer- 
tificate in  form  follows  the  statute.  Bolz  v.  Ridder,  19  W.  Dig.,  463. 

Where  the  capital  stock  is  actually  paid  in  in  cash,  the  mere  fact  that  the  cor- 
poration bought  out  assets  of  an  old  company  at  their  fairly  appraised  value,  does 
not  call  for,  or  authorize,  a  statement  in  the  report  that  the  stock  had  been  paid 
for  in  property.  Wickens  v.  Foster,  22  W.  Dig.,  426. 

The  trustees  are  not  rendered  personally  liable  for  the  corporate  debts,  under 
this  section,  by  the  mere  omission  to  specify  separately,  in  their  annual  report, 
the  amount  of  stock  issued  for  cash  and  the  amount  issued  for  property  purchased 
by  the  company.  "Whitaker  v.  Masterton,  21  W.  Dig.,  209. 

A  report,  which  contains  the  names  of  persons  as  stockholders  and  states  the 
amount  of  their  stock  as  actually  paid  in,  where  in  fact  such  persons  are  not  stock- 
holders at  all,  is  false  in  a  material  representation.  Brandt  v.  Godwin,  3  N.  Y. 
Supp.,  807.  The  fact  that  the  trustee  signed  such  report  in  good  faith,  under  ad- 
rice  of  counsel,  and  believing  its  statements  to  be  true,  is  no  defense  to  the 
statutory  liability.  Id. 

In  an  action,  under  this  section,  in  a  case  where  the  certificate  filed  by  the 
trustees  states  that  the  whole  of  the  capital  stock  had  been  paid  in  fully  by  the 
purchase  of  a  certain  described  patent,  though  said  certificate  in  form  followed  the 
statute,  the  question  of  the  value  of  the  patent,  and  whether  it  was  worth  the 
amount  of  the  stock,  is  a  question  for  the  jury.  Bolz  v.  Ridder,  ante. 

Directors,  in  issuing  stock  for  property,  must  see  that  purchase  price  doea  not 
oxceed  fair  value.  Huntington  v.  Attrill,  118  N.  Y.,  365. 

Its  then  value  is  measure  of  consideration.     Id. 

In  judging  of  their  knowledge  and  motive,  they  will  be  treated  aa  men  of  or- 
dinary discernment  and  sagacity.  Id. 

Knowledge  of  falsity  of  report  is  not  essential  to  liability.     Id. 

Statute  is  constitutional.     Id. 

Evidence  of  similar  property,  or  opinion  based  upon  knowledge  of  other  property, 
is  inadmissible  in  action  for  filing  false  report.  Ante. 

This  section  does  not  limit  the  liability  of  the  trustees  for  a  materially  false  rep- 
resentation to  a  case  in  which  it  shall  be  fraudulently  or  knowingly  made.  Tor- 
bett t>.  Eaton,  49  Hun,  209.  In  this  respect,  it  differs  from  section  15,  chap.  40,  of 
1848.  That  act  contained  the  further  requirement  that  the  trustee  signing  the 
report,  should  do  so,  knowing  it  to  be  false.  But  the  language  of  the  present  sec- 
tion follows  and  is  identical,  in  this  respect,  with  section  21,  chap.  611,  of  1875. 
Under  the  latter  section,  it  was  held  that  the  liability  of  a  director  of  a  corporation 
Cor  a  false  report  did  not  depend  upon  his  good  faith  in  making  and  signing  such 
report.  Torbett  v.  Eaton,  ante. 

In  an  action  under  this  section,  it  is  not  necessary  to  show  knowledge  on  the 
part  of  the  officer  at  the  time  of  signing.  Huntington  v.  Attrill,  118  N,  Y.,  865  ; 
Torbett  t?.  Eaton,  113  id.,  623  ;  49  Hun,  209.  Proof  that  the  statement  is  untrue  in 
any  material  representation,  is  sufficient.  Id. 

88 


STOCK  CORPORATION  LAW. 

To  charge  a  trustee  with  the  penalty  imposed  by  this  section,  some  act  or  cir- 
cumstance must  be  shown  indicating-  that  it  was  made  in  bad  faith,  willfully,  or 
for  some  fraudulent  purpose,  and  not  ignorantly  or  inadvertently.  Bonnell  v. 
Griswold,  89  N.  Y.,  IV2  ;  Pier  v.  Hanmore,  86  id.,  95.  This  is  a  question  of  fact, 
which  must  be  passed  upon,  before  the  liability  can  be  adjudged.  Id.  The 
necessity  of  such  proof  is  confined  to  cases  where  it  is  possible  for  the  trustee  to 
sign  a  false,  under  the  belief  that  it  is  a  true,  report.  Id.  The  penalty  follows  an 
actual,  and  not  a  constructive  falsehood.  Id.  Butler -».  Smalley,  101  N.  Y.,  71. 

Liability  under  this  section  does  not  attach,  when  a  report  is  made  and  filed,  in 
terms  complying-  with  the  statute,  though  some  of  the  material  representations 
therein  are  untrue.  Bonnell  v.  Griswold,  ante  ;  Pier  v.  Hanmore,  ante. 

Where  the  trustee  should  knowingly  state  that  a  larger  amount  of  capital  had 
been  paid  in  than  had  in  fact  been  paid,  or.  state  the  indebtedness  of  the  company 
at  less  than  the  actual  amount,  it  can  hardly  be  necessary  to  prove  the  purpose 
for  which  the  misrepresentation  was  made,  or  that  any  particular  fraud  was  in- 
tended. Pier  v  Hanmore,  ante. 

When  the  knowledge  of  the  trustee  is  not  directly  proven,  but  is  matter  of  in- 
ference, the  existence  of  a  guilty  motive*  or  purpose  may  be  material  to  establish 
the  scienter.  Id. 

To  render  the  trustees  personally  liable  under  this  section,  it  must  appear  that 
they  have  signed  the  report  with  knowledge  that  it  contained  a  materially  false 
representation,  and  that  it  was  mpde  in  bad  faith  or  for  some  fraudulent  purpose. 
Whitaker  v.  Masterton,  21  W.  Dig.,  209  ;  Bonnell  v.  Griswold,  80  N.  Y.,  128  ; 
Pier  v.  Hanmore,  ante;  13onnell  v.  Griswold,  89  id.,  122.  See  Glen's  P.  P.  Co.  v. 
White,  18  Hun,  214  ;  Wickens  v.  Foster,  22  W.  Dig  ,  4'J6. 

A  finding  that  a  trustee  signed  the  annual  report  in  bad  faith,  with  knowledge 
of  its  falsity,  was  held,  in  Blake  v.  Griswold,  103  N.  Y.,  429,  to  be  justified  by  the 
facts. 

If  a  trustee  acts  honestly  and  in  good  faith  in  making  the  statement,  believing  it 
to  be  true,  this  will  exonerate  him  from  liability  under  this  section.  Taylor  t>. 
Thompson,  66  How.,  102  ;  Lake  Sup.  I.  Co.-  v.  Drexel,  90  N.  Y.,  87. 

In  an  action  under  this  section,  an  allegation  in  the  complaint  that  the  trustee 
knew  the  report  to  be  false  when  he  signed  it,  is  sufficient.  Taylor  v.  Thompson. 
66  How.,  102. 

False  statement  in  annual  report  of  corporation  as  to  capital  paid  in,  not  affect- 
ing judgment  or  conduct  of  persons  dealing  with  it,  is  not  material  false  statement, 
rendering  officers  signing  report  liable  for  its  debts.  Walton  v.  Goodwin,  68  Hun, 
87. 

In  an  action  against  a  trustee  to  charge  him  with  liability  under  this  section,  a 
judgment,  recovered  against  the  corporation  is  neither  conclusive,  nor  primafacit 
evidence  of  the  debt.  Torbett  v.  Goodwin,  62  Hun,  407 ;  41  N.  Y.  St.  Rep.,  323; 
87  Abb.  N.  C.,  444. 

Judgment  against  company  is  not  conclusive  in  action  against  director.  Brand 
t).  Goodwin,  24  N.  Y.  St.  Rep.,  305. 

In  action  against  trustees  for  not  filing  report,  stock  transfer  book  is  evidence 
of  transfers  of  stock  and  dates  thereof.  Kraft  v.  Coykendall,  26  N.  Y.  St.  Rep.,  79. 

An  assignee  of  a  claim  against  the  corporation  may  maintain  an  action  against  a 
trustee  thereof  under  this  section.  Pier  v.  George,  86  N.  Y.,  613. 

The  penalty  is  recoverable  by  an  assignee  of  the  claim,  it  seems,  though  not  by 
a  legal  representative  of  a  deceased  claimant.  Torbett  v.  Godwin,  62  Hun,  407  ; 
27  Abb.  N.  C.,  444. 

The  liability  created  by  this  section  abates  on  the  death  of  the  original  creditor 
of  the  corporation  and  can  not  be  revived  in  favor  of,  or  prosecuted  by,  his  per- 
sonal representatives.     Boyle  v.  Thurber,  50  Hun,  259  ;  Brtckett  v.  Griswold,  1( 
N.  Y.,  425 ;  Blake  v.  Same,  104  id.,  613. 

The  action  under  this  section  abates  upon  the  death  of  either  party.     Blake  t>. 
Griswold,  104  N.  Y..  613.     But  it  does  not  abate  in  case  the  plaintiff  dies  afte 
rendition  of  the  judgment.     Id.     In  such  case,  the  personal  representatives  are 
entitled  to  be  substituted  in  his  place.     Id. 

The  death  of  the  creditor,  pending  an  action  against  the  trustees  under  this 
•ection  terminates  the  action.  Brackett  v.  Griswold,  103  N.  Y.,  425.  The  action 
does  not  survive  to  hia  personal  representatives.  Id.  Blake  «.  Gmwold,. 104  W. 
Y.,  616  ;  Whitaker  v.  Masterton,  104  id.,  280  ;  Hegerich  v.  Keddie,  99  id.,  258.  fc 
far  as  the  action  i»  for  a  conspiracy  to  cheat  or  defraud,  it  involves  an  injury  & 
property  righto  and  narmes.  Brackett  v.  Griswold,  ant*. 

39 


STOCK  CORPORATION  LAW. 

In  an  action  under  this  section  it  is  no  defense  to  such  a  liability  that  the  director 
is  also  a  creditor  of  the  company.  Richards  v.  Croker,  19  Abb.  N.  C.,  73. 

A  recovery  on  the  ground  of  the  falsity  of  a  report  made  can  not  be  had  upon 
the  allegation  of  an  omission  to  make  and  file  any  report.  Whitney  Arms  Co.  v. 
Barlow,  68  N.  Y.,  34. 

The  penalty,  imposed  by  this  section,  is  not  incurred  simply  because  of  an  omis- 
sion of  certain  liabilities  of  the  company  from  the  aggregate  of  indebtedness, 
I  hough  this  was  known  to  the  trustees  at  the  time  the  report  was  made.  Butler  t>. 
bmalley,  101  N.  Y.,  71. 

A  mere  statement  by  a  trustee  to  a  fellow-trustee,  that  he  will  have  no  more  to 
Jo  with  the  company,  can  not  be  construed  as  a  resignation.  Kuidberg  t>.  Mudgett, 
84  W.  Dig.,  229.  To  have  such  effect,  his  intention  to  give  up  the  office  should  b« 
expressed  distinctly  and  brought  home  to  the  corporation.  Id. 

An  action  under  this  section  is  local  and  must  be  tried  in  the  county  where 
the  cause  of  action,  or  some  part  thereof,  arose.  Veeder  v.  Baker,  80  N.  Y., 
156.  Such  cause  of  action  arises  in  the  county  where  the  report  was  made 
and  filed,  though  the  debt  against  the  company  may  have  originated  in  another 
county.  Id. 

It  is  held  in  Hutchinson  v.  Young,  180  App.  Div.,  246,  that  this  section 
is  not  penal. 

§  32.  Alterations  or  extension  of  business — Any  stock  cor- 
poration heretofore  or  hereafter  organized  under  any  general  or  sdecial 
law  of  this  state  may  alter  its  certificate  of  incorporation  so  as  to 
include  therein  any  purposes,  powers  or  provisions  which  at  the  time 
ot  such  alteration  may  apply  to  corporations  engaged  in. a  business 
of  the  same  general  character,  or  which  might  be  included  in  the 
certificate  of  incorporation  of  a  corporation  organized  under  any 
general  law  of  this  state  for  a  business  of  the  same  general  character, 
by  filing  in  the  manner  provided  for  the  original  certificate  of  incor- 
poration an  amended  certificate,  executed  by  the  president  and 
secretary,  stating  the  alteration  proposed,  and  that  the  s>ame  has 
been  duly  authorized  by  a  vote  of  a  majority  of  tLe  'directors  and 
also  by  vote*  of  stockholders  representing  at  least  three- fifths  of 
the  capital  stock*  at  a  meeting  of  the  stockholders  called  for  the 
purpose  in  the  manner  provided  in  section  forty-five  of  this  chap- 
ter, and  a  copy  of  the  proceedings  of  such  meeting,  verified  by  the 
affidavit  of  one  of  the  directors  present  thereat,  shall  be  filed 
with  such  amended  certificate. 

Amended  by  ch.   354  of   1901.     In  effect  April   16,   1901. 
Amended  by  ch.   755  of  Laws   1905. 

§  33.  Sale  of  franchise  and  property. — A  stock  corporation,  except 
a  railroad  corporation  and  except  as  otherwise  provided  by  law,  with 
the  consent  of  two-thirds  of  its  stock,  may  sell  and  convey  its  property, 
rights,  privileges  and  franchises,  or  any  interest  therein  or  any  part 
thereof  to  a  domestic  corporation,  engaged  in  a  business  of  the  same 
general  character,  or  which  might  be  included  in  the  certificate  of 
incorporation  of  a  corporation  organizing  under  any  general  law  of 
this  state  for  a  business  of  the  same  general  character,  and  a  domestic 
corporation  the  principal  business  of  which  is  carried  on  in,  and  the 
principal  tangible  property  of  which  is  located  within  a  state  adjoining 
the  state  of  New  York,  may  with  the  consent  of  the  holders  of  ninety- 
five  per  centum  of  its  capital  stock,  sell  and  convey  its  property  situate 


STOCK  CORPOKATION  LAW. 

without  the  state  of  New  York,  not  including  its  franchises  to  a  corpo- 
ration organized  under  the  laws  of  such  adjoining  state,  and  such  sale 
and  conveyance  shall,  in  case  of  a  sale  to  a  domestic  corporation,  vest 
the  rights,  property  and  franchises  thereby  transferred,  and  in  case  of  a 
sale  to  a  foreign  corporation  the  property  sold  in  the  corporation  to 
which  they  are  conveyed  for  the  term  of  its  corporate  existence, 
subject  to  the  provisions  and  restrictions  applicable  to  the  corporation 
conveying  them.  Before  such  sale  or  conveyance  shall  be  made  such 
consent  shall  be  obtained  at  a  meeting  of  the  stockholders  called  upon 
like  notice  as  that  required  for  an  annual  meeting.  If  any  stockholder 
not  voting  in  favor  of  such  proposed  sale  or  conveyance  shall  at  such 
meeting,  or  within  twenty  days  thereafter  object  to  such  sale,  and 
demand  payment  for  his  stock,  he  may,  within  sixty  days  after  such 
meeting,  apply  to  the  supreme  court  at  any  special  term  thereof  held  in 
the  district  in  which  the  principal  place  of  business  of  such  corpora- 
tion is  situated,  upon  eight  days'  notice  to  the  corporation,  for  the 
appointment  of  three  persons  to  appraise  the  value  of  such  stock,  and 
the  court  shall  appoint  three  such  appraisers,  and  designate  the  time 
and  place  of  their  proceedings  as  shall  be  deemed  proper,  and  also 
direct  the  manner  in  which  payment  for  such  stock  shall  be  made  to 
such  stockholders.  The  court  may  fill  any  vacancy  in  the  board  of 
appraisers  occurring  by  refusal  or  neglect  to  serve  or  otherwise.  The 
appraisers  shall  meet  at  the  time  and  place  designated,  and  they  or 
any  two  of  them,  after  being  duly  sworn  honestly  and  faithfully  to 
discharge  their  duties,  shall  estimate  and  certify  the  value  of  such 
stock  at  the  time  of  such  dissent,  and  deliver  one  copy  to  such  corpo- 
ration, and  another  to  such  stockholder,  if  demanded;  the  charg'es  and 
expenses  of  the  appraisers  shall  be  paid  by  the  corporation.  When  the 
corporation  shall  have  paid  the  amount  of  such  appraisal,  as  directed  by 
the  court,  such  stockholders  shall  cease  to  have  any  interest  in  such 
stock  and  in  the  corporate  property  of  such  corporation  and  such 
stock  may  be  held  or  disposed  of  by  such  corporation. 

Amended  by  ch.  130  of  1901.     In  effect  March  20,  1901. 

§  34.  No  director  or  officer  of  any  stock  corporation  shall  be  liable 
to  any  creditor  of  the  corporation,  because  of  the  creation  of  any  ex- 
cessive indebtedness,  or  because  of  any  failure  to  make  or  to  file  aii 
annual  report,  whether  heretofore  or  hereafter  occurring; 

(1)  In  case  of  any  debt,  as  to  which  personal  liability  of  directors 
or  officers  may  be  or  shall  have  been  waived  by  such  creditor,  or  by 
anyone  under  whom  he  claims ;  or  by  any  provision  of  any  instru- 
ment creating  or  securing  such  debt :  or 

(2)  Unless  within  three  years  after  the  occurrence  of  the  act  or  the 
default  in  respect  of  which  it  shall  be  sought  to  charge  the  director 
or  officer,  such  creditor  shall  have  served  upon  such  director  or  offi- 

408 


STOCK  CORPORATION  LAW. 

cer  written  notice  of  his  intention  to  hold  him  personally  liable  foi 
his  claim  ;  provided,  nevertheless,  that  any  snch  liability,  because  of 
any  such  default  now  existing  and  not  waived  as  above  provided, 
may  be  enforced  by  action  begun  at  any  time  within  the  year  eigh- 
teen hundred  and  ninety-nine  or  by  action  begun  thereafter,  if  within 
such  year  written  notice  of  intention  to  enforce  such  liability  shall 
have  been  given  as  above  provided. 

Any  director  or  officer,  who,  because  of  any  such  existing  or  future 
liability,  shall  pay  any  debt  of  the  corporation,  shall  be  subrogated 
to  all  rights  of  the  creditor  in  respect  thereof  against  the  corporate 
property,  bn*  not  against  the  stockholders  of  the  corporation;  and 
also  shall  be  entitled  to  contribution  from  all  other  directors  and 
officers  of  the  corporation  similarly  liable  for  the  same  debt,  and  the 
personal  representatives  of  any  such  direc*  >r  or  officer  who  shall 
have  died  before  making  such  contribution. 

Added  by  eh.  864  of  IBM. 


ARTICLE  III. 

STOCK;  STOCKHOLDERS,  THKIR  RIGHTS  AND  LIABILITIES. 

40.  Is1  ue  and  transfers  of  stock. 

41.  Subscriptions  to  stock. 

42.  Consideration  for  issue  of  stock  and  bonds. 
48.  Time  of  payment  of  subscriptions  to  stock. 
44.  Increase  or  reduction  of  capital  stock. 

46.  Notice  of  meeting  to  increase  or  reduce  capital  stock. 

4*.  Conduct  of  such  meeting;  certificate  of  increase  or  reduction. 

47.  Preferred  and  common  stock. 

48.  Prohibited  transfers  to  officers  or  stockholders 

48.  Payment  by  stockholders  of  mortgage  debt  pending  foreclosure 

60.  Application  to  court  to  order  issue  of  new  in  place  of  lost  certificate  of 

61.  Order  of  court  upon  such  application. 
52.  Financial  statement  to  stockholders. 

63.  Exhibition  of  books  by  transfer  agent  of  foreign  corporation. 

64.  Liabilities  of  itockholders. 

66.    Limitation  of  stockholder's  liability. 

66.  ImcreaAe  or  reduction  of  number  of  share*. 

67.  Voluntary  dissolution. 
86.    Merger. 

59.  Change  of  place  of 'business. 

60.  Liability  of  officers,  directors  and  stockholders  of  foreign  corporations. 

61.  Dissolution  by  in  corporators. 

62.  Partly  paid  stock. 

|  40.  Issue  and  transfers  of  stock. — The  stock  of  every  stock 
corporation  shall  be  represented  by  certificates  prepared  by  the  di- 
rectors and  signed  by  the  president  or  vice-president  and  secretary  or 
treasurer  and  sealed  with  thu  seal  of  the  corporation,  and  shall  be 
transferable  in  the  manner  prescribed  in  this  chapter  and  in  the  by- 
laws.  No  share  shall  be  transferable  until  all  previous  calls  thereon 
tliall  have  been  fully  paid  in. 


40b 


STOCK  CORPORATION  LAW. 

Any  stock  corporation,  domestic  or  foreign,  now  existing  or  hereafter 
organized,  except  monied  corporations,  may  purchase,  acquire,  hold  an3 
dispose  of  the  stocks,  bonds  and  other  evidences  of  indebtedness  of  any 
corporation,  domestic  or  foreign,  and  issue  in  exchange  therefor  its 
stock,  bonds  or  other  obligations  if  authorized  so  to  do  by  a  pro- 
vision in  the  certificate  of  incorporation  of  such  stock  corporation,  or 
in  any  certificate  amendatory  thereof  or  supplementary  thereto,  filed 
in  pursuance  of  law,  or  if  the  corporation  whose  stock  is  so  purchased, 
acquired,  held  or  disposed  of,  is  engaged  in  a  business  similar  to  that 
of  such  stock  corporation,  or  engaged  in  the  manufacture,  use  or  sale 
of  tihe  property,  or  in  the  construction  or  operation  of  works  necessary 
or  useful  in  the  business  of  such  stock  corporation,  or  in  which  or  in 
connection  with  which  the  manufactured  articles,  product  or  property 
of  such  stock  corporation  are  or  may  be  used,  or  is  a  corporation  with 
which  such  stock  corporation  is  or  may  be  authorized  to  consolidate.  When 
any  such  corporation  shall  be  a  stockholder  in  any  other  corporation,  as 
herein  provided,  its  president  or  other  officers  shall  be  eligible  to  the 
office  of  director  of  sudh  corporation,  the  same  as  if  they  were  indi- 
vidually stockholders  therein  and  the  corporation  holding  such  stock 
shall  possess  and  exercise  in  respect  thereof,  all  the  rights,  powers  and 
privileges  of  individual  owners  or  holders  of  such  stock. 

Any  stock  corporation  may,  in  pursuance  of  a  unanimous  .vote  of 
its  stockholders  voting  at  a  special  meeting  called  for  that  purpose 
by  notice  in  writing  signed  by  a  majority  of  the  directors  of  such 
corporation  stating  the  time  and  place  and  object  of  the  meeting,  and 
served  upon  each  stockholder  appearing  as  such  upon  the  books  of  the 
corporation,  personally  or  by  mail  at  his  last  known  post-office  address 
at  least  sixty  days  prior  to  such  meeting,  guarantee  the  bonds  of  any 
other  domestic  corporation  engaged  in  the  same  general  line  of  business ; 
and  any  stock  corporation  owning  the  entire  capital  stock  of  any  other 
domestic  stock  corporation  engaged  in  the  same  general  line  of  busi- 
ness may  in  pursuance  of  a  two-thirds  vote  of  its  stockholders  voting 
at  a  special  meeting  called  for  that  purpose  by  notice  in  writing  signed 
by  a  majority  of  the  directors  of  such  corporation,  stating  the  time  and 
place  and  object  of  the  meeting  and  served  upon  each  stockholder 
appearing  as  such  upon  the  books  of  the  corporation  personally,  or  by 
mail,  at  his  last  known  post-office,  at  least  sixty  days  prior  to  such 
meeting,  guarantee  the  bonds  of  such  other  corporation. 

Former  section  40  amended. 

Amended  by  ch.  601  of  1902.     In  effect  April  15,  1902. 

See  section  7,  chap.  67  of  1811;  section  8,  chap.  40  of  1848,  and  section 
12.  chap.  641  of  1875,  now  repealed. 

The  capital  stock  is  the  money  contributed  by  the  corporators  to  the 
capital,  and  is  usually  represented  by  shares  issued  to  the  subscribers  to 
the  stock  on  the  initiation  of  the  corporate  enterprise.     Christensen 
Eno,  106  N.  Y.  97;    Burrall       Bushwick  E.  B.  Co.,  75  id.  211. 

41 


STOCK  CORPORATION  LAW* 

A  person  who  subscribes  regularly  to  the  stock  of  a  corporation  become*  * 
stockholder  in  virtue  of  his  subscription,  and  especially  so  after  he  has  paid  a 
portion  of  his  subscription.  Spear  ».  Crawford,  14  Wend.,  20;  Lathrop  «.  Knee- 
land,  4(5  Barb.,  432. 

Where  the  whole  capital  stock  has  been  subscribed  for  and  taken  at  the  time  the 
articles  of  incorporation  were  filed,  no  person,  by  merely  writing  his  name  in  the 
corporation  book  and  affixing  a  number  of  shares  opposite  thereto,  can  acquire  a 
right  to  any  shares  of  stock,  or  become,  by  such  act,  a  stockholder  of  the  cor- 
poration, and  as  such  liable  for  its  debts.  Lathrop  v.  Eneeland,  ante.  In  such 
case,  no  person  can  become  a  stockholder,  except  by  purchase  from  an  original 
subscriber,  or  his  assignee,  and  by  assignment  of  stock.  Id. 

A  subscription  to  the  certificate  of  incorporation  only  by  placing  opposite  to  his 
signature  the  number  of  shares  taken  by  him,  is  sufficient  as  a  subscription. 
Phoenix  W.  Co.  ».  Badger,  6  Hun,  293;  affd  67  N.  Y.,  294 ;  Buffalo,  etc.,  Co.  v. 
Dudley,  14  id.,  336 ;  Lake  Ontario,  etc.,  Co.  v.  Mason,  16  id.,  461 ;  Dayton  v.  Borst, 
81  id.,  435  note. 

The  payment  for  stock,  and  the  right  to  receive  the  certificates  therefor,  make 
the  subscriber  or  purchaser  a  stockholder  in  the  corporation,  to  the  extent  of  th« 
stock  he  is  entitled  to  receive.  De  Caumont  v.  Bogart,  36  Hun,  382 ;  Rutter  t>. 
Kilpatrick,  63  N.  Y.,  606.  He  is  in  a  position  to  assign  his  right  to  receive  the  cer» 
tificate.  Id.;  Robinson  v.  National  Bk.,  etc.,  95  N.  Y.,  637. 

The  effect  of  a  certificate  of  unpaid  stock  in  a  corporation,  created  for  the  private 
benefit  of  its  projectors,  is  to  give  the  holder  a  title  conditional  upon  his  making 
further  payments,  if  called,  but  leaves  such  payments  optional  with  him.  Seymour 
v.  Sturgess,  26  N.  Y.,  134. 

Stock  certificates  executed,  though  not  detached,  are  sufficiently  issued.  Hal* 
stead  v.  Dodge,  51  Supr.,  169. 

Any  contract  of  subscription,  good  and  valid  at  common  law,  is  still  valid,  not- 
withstanding  this  section.  Buffalo  &  J.  R.  R.  Co.  v.  Gifford,  87  N.  Y.,  294. 

A  call  for  payment,  is  sufficient  notice  that  a  sufficient  amount  of  stock  has  be«ti 
subscribed.  Harlem  C.  Co.  v.  Seixas,  2  Hall,  504. 

The  unissued  shares  of  a  corporation  are  not  assets.     Christensen  v.  Eno,  ante. 

The  right  to  sell  shares  is  a  personal  one,  to  be  enjoyed  and  exercised  in 
severally  by  the  stockholders  of  a  corporation.  Campbell  v.  American  Zylonite 
Co.,  122  N.  Y.,  455. 

Certificates  may  be  transferred  in  blank,  and  the  holder  may  fill  in  his  name. 
Com.  Bk.  v.  Kortright,  22  Wend.,  848;  Leavitt  v.  Fisher,  4  Duer,  1. 

The  liability  of  a  shareholder  to  pay  for  stock  does  not  arise  out  of  his  relation. 
Christensen  v.  Eno,  ante.  It  depends  upon  his  contract,  express  or  implied,  or 
upon  some  statute.  Id.  In  the  absence  of  either  of  these  grounds  of  liability,  a 
person  to  whom  shares  have  been  issued  as  a  gratuity,  has  not,  by  accepting  them, 
committed  any  wrong  upon  creditors,  or  made  himself  liable  to  pay  the  nominal 
face  of  the  shares  as  upon  a  subscription  or  contract.  Id.;  Seymour  v. 
Sturgess,  ante. 

Presence  of  the  first  election,  election  as  a  director  thereat,  and  acting  as  a 
member  of  the  board  will  estop  a  subscriber  from  objecting,  in  an  action  against 
him  by  the  company,  to  the  validity  of  its  organization,  on  the  ground  that  no 
notice  of  such  election  was  given,  and  that  some  of  the  subscribers  did  not 'attend. 
Schenectady,  etc.,  Co.  v.  Thatcher,  11  N.  Y.,  102  ;  see  also,  Phoenix  W.  Co.  t>. 
Badger,  6  Hun,  293 ;  Buffalo,  etc.,  Co.  v.  Cary,  26  N.  Y.,  75  ;  Don-is  v.  French,  4 
Hun,  292;  White  v.  Coventry,  29  Barb.,  305;  Cooper  v.  Shaver,  41  id.,  151  ; 
Knowlton  v.  Congress,  etc.,  E.  S.  Co.,  57  N.  Y.,  331. 

A  corporation  can  not  purchase  or  deal  in  stocks  of  other  corporations,  unless 
expressly  authorized  by  law  so  to  do.  Holmes  &  G.  Mfg.  Co.  t>.  Holmes  &  W.  M. 
Co.,  127  N.  Y.,  352;  38  N.  Y.  St.  Rep.,  155  ;  Talmagev.  Pell,  7  N.  Y.,  328;  Berry 
v.  Yates,  24  Barb.,  200 ;  Milbank  v.  N.  Y.,  L.  E.  &  W.  R.  Co.,  64  How.,  20 ; 
Mechanics'  M.  S.  Bk.  v.  Meriden  A.  Co.,  24  Conn.,  159 ;  Central  R.  R.  Co.  •».  Penn. 
R.  R.  Co.,  31  N.  J.  Eq.  475;  Hazlehurst  «.  Savannah  R.  R.  Co.,  43  Ga.,  67  ; 
Valley  R.  R.  Co.  v.  Lake  Erie  I.  Co.,  18  N.  E.  Rep.  486 ;  People  v.  Chicago  G.  T. 
Co.,  130  111.,  268;  Franklin  Co.  v.  Lewiston  Inst.,  68  Me.  43  ;  Hill  «.  Nesbet,  100 
Ind.,  341.  But  it  may  take  title  to  all  kinds  of  property,  even  the  stock  of  another 
company,  in  the  payment  of  a  debt.  Id.;  Kent  v.  Quicksilver  M.  Co.,  78  N.  Y., 
159;  Treadwell  v.  S.  M.  Co.,  7  Gray,  393;  Howe  73.  Boston  C.  Co.,  16  id.,  493; 
Hodges  v.  N.  E.  S.  Co.,  1  R.  L,  312;  State  v.  Western  I.  C.  Co.,  40  Kan.,  9«; 
Leathers  v.  Janney,  41  La.  Ann.,  1120 ;  Hibemia  Ins.  Co.  v.  St.  Louis,  etc.,  18 
Fed.  Rep.,  516  ;  Taylor  v.  North  8.  G.  M.  Co.,  79  Cal.,  286  ;  Miners'  D.  Co.  «. 
Eellerbach,  37  id.,  643;  State  t>  Butler,  86  Tsnn.,  614;  Palmer  «.  Cypreiw  H. 
0«m.,  122  N.  T.,  439. 

43 


STOCK  CORPORATION  LAW 

Stockholder  iu  corporation  has  an  insurable  interest  in  corporate  property 
Riggs  v.  Com.  Ins.  Co.,  125  N.  Y.,  7. 

Decedent  assigned  certificate  to  third  person  whom  executor  sued  to  compel 
re-assignment  on  ground  of  fraud.  Third  party's  sister  appeared  as  witnese. 
Afterwards  third  party  assigned  to  his  sister;  in  action  of  interpleader  held  that 
judgment-roll  was  admissible  on  question  of  good  faith  of  sister  in  taking  assign- 
ment. Pfg  Tel.. Trans.  Co.  v.  Brantingham,  77  App.  Div.  280. 

§  41.  Subscriptions  to  stock.— If  the  whole  capital  stock  shall  not 
have  been  subscribed  at  the  time  of  filing  the  certificate  of  incorpora- 
tion, the  directors  named  in  the  certificate  may  open  books  of  subscrip- 
tion to  fill  up  the  capital  stock  in  such  places,  and  after  giving  such 
notices  as  they  may  deem  expedient,  and  may  continue  -to  receive  sub- 
scriptions until  the  whole  capital  stock  is  subscribed.  At  the  time  of 
subscribing,  every  subscriber,  whose  subscription  is  payable  in  money, 
shall  pay  to  the  directors  ten  per  centum  upon  the  amount  subscribed 
by  him  in  cash,  and  no  such  subscription  shall  be  received  or  taken 
without  such  payment. 

Former  section  41  amended. 

See  section  5,  chap.  611  of  1875,  now  repealed. 

This  section  does  not  point  out  how,  or  where  the  books  of  subscription  shall  be 
opened,  or  what  kind  of  books  shall  be  used.  Buffalo  &  J.  R.  R.  Co.  i>.  Gifford, 
87  N.  Y.,  294.  Every  purpose  of  the  statute  is  satisfied,  if  the  directors  adopt  a 
book  which  some  one  else  has  provided.  Id. 

A  subscription  of  the  whole  amount  of  stock  is  never  held  a  condition  precedent 
to  a  legal  corporate  existence,  except  when  it  is  made  so  by  the  act  of  incorpora- 
tion. Schenectady,  etc.,  Co.  v.  Thatcher,  11  N.  Y.,  102. 

The  directors  have  authority  to  require  payment  of  subscriptions  for  stock 
before  the  whole  capital  is  subscribed.  Id. 

In  actions  upon  unpaid  subscriptions  for  stock,  and  against  assignees  of  stock 
not  fully  paid  for,  courts  have  respect  to  the  terms  of  the  contract  and  certificate, 
and  the  circumstances  of  the  case.  Seymour  v.  Sturges,  26  N.  Y.,  141 ;  Billings 
V.  Robinson,  94  id.,  415. 

Each  subscription  constitutes  a  separate  and  independent  agreement,  and,  in  the 
absence  of  proof,  there  can  be  no  presumption  that  a  person  was  induced  to  sub- 
scribe because  another  had  done  so.  Whittlesey  v.  Frantz,  74  N.  Y.,  456. 

In  the  absence  of  statutory  restriction,  a  corporation  has  power  to  receive  pay- 
ment otherwise  than  in  money  for  a  subscription  to  its  capital  stock.  Williams 
v.  W.  U.  T.  Co.,  9  Abb.  N.  C.,  437;  East  N.  Y.,  etc.,  R.  R.  Co.  v.  Lighthall,  5 
Abb.,  N.  S.,  458  ;  Barry  v.  Mer.  Ex.  Co.,  1  Sandf.  Ch.,  280 ;  De  Groff  v.  Am.  L.  I. 
Co  ,  21  N.  Y.,  124. 

The  language  employed  in  the  enactment  of  this  section  can  be  satisfied  only  by 
a  payment  in  cash  or  its  actual  equivalent.  Excelsior  G.  B.  Co.  v.  Stayner,  25 
linn,  91;  61  How.,  456;  12  W.  Dig.,  536.  In  no  proper  sense  can  the  unpaid  or 
uncertified  check  of  the  subscriber  be  accepted  or  regarded  as  cash.  Id.  8*»e 
Durant  v.  Abendroth,  69  N.  Y.,  148  ;  Beach  v.  Smith,  30  id.,  116.  If  the  payment 
is  not  so  made,  the  party  can  not  become  a  subscriber.  Excelsior  G.  B.  Co.  v. 
Stayner,  ante.  He  can  not  acquire  in  any  other  way  aright  to  the  stock,  nor  can 
the  formal  terms  of  the  contract,  made  for  the  payment  of  its  price,  be  enforced 
against  him.  Id.  The  next  section  (42)  renders  void  all  stock  issued  in  violation 
of  its  provisions.  See  Jenkins  v.  Union  Turnpike  Co.»  1  Caine's  Cases,  86  ; 
President,  etc.,  Hurtiss,  9  Johns.,  217;  Same  v.  McKean,  11  id.,  98;  Rensselaer, 
etc.,  Co.  v.  Barton,  16  N.  Y.,  457  note  ;  Black  River,  etc.,  Co.  v.  Clarke,  25  id., 
208. 

The  subscription  and  the  payment  of  the  ten  per  cent,  must  both  concur  to 
make  a  valid  subscription.  Excelsior  G.  B.  Co.  v.  Stayner,  ante.  Actual  pay- 
ment at  any  period  after  subscription,  with  intent  to  effectuate  and  complete  it, 
will  satisfy  the  statute.  Id. 

A  subscription  unaccompanied  by  the  required  ten  per  cent,  is  void  under  this 
section.  Perry  v.  Hoadlev,  19  Abb.  N.  C..  76. 

In  the  absence  of  the  provisions  that  nothing  but  cash  shall  be  considered  ail 
payment  of  capital,  and  that,  if  stock  is  issued  for  property,  it  must  be  so  speci- 
fied, a  areneral  statement  that  so  much  capital  had  been  paid  in  would  not,  in  cotn- 

43 


STOCK  CORPORATION  LAW. 

mon  parlance,  be  very  far  from  correct,  even  though  the  capital  had  not  been  all 
paid  in  cash.  Pier  v.  Hanmore,  86  N.  Y.,  95.  The  former  law  contained  these 
provisions,  but  the  present  act  has  omitted  them. 

Where  a  corporation  procures  an  alteration  to  be  made  in  it«  charter  by  which 
a  new  and  different  business  is  superadded  to  that  originally  contemplated,  such 
t f  the  stockholders  as  do  not  assent  to  the  alteration  will  be  absolved  from  liability 
on  their  subscriptions  to  the  capital  stock.  Hartford  &  N.  H.  R.  R.  Co.,  6  Hilt 
3S3.  Especially  if  the  alteration  is  one  plainly  prejudicial  to  their  interests.  Id. 

Subscriber  to  capital  stock  is  not  entitled   to  certificate,  until  full  payment,  nor 
(i   receive   certificate  of  consolidated  stock  in   exchange  therefor.     Babcock   «. 
Schuylkill  v.  L..V.  R.  R.  Co.,  39  N.  Y.  St.  Rep.,  506. 

Complaint  in  action  on  agreement.  Knickerbocker  Trust  Co.  v.  Hard,  67  App. 
Div.  46i5. 

.Subscription  cannot  be  enforced  where  prospectus  differs  from  certificate  of 
incorp  >ration.  Stern  v.  ~McK.ee,  70  App.  Div.  143.  . 

Railway  corporation  authorized  to  issue  preferred  stock  without  conditions. 
May  make  suca  conditions  as  it  chooses.  Uackett  ».  N.  P.  R.  Co.,  36  Misc.  583. 

Subscriber  not  mentioned  in  certificate  liable  when  demand  made  shortly  after 
organization.  Woods  M.  V.  Co.,  v.  Brody.  39  Misc.,  79. 

Plaintiff  relying  on  representations  of  facts,  not  merely  opinions,  which  were 
untrue,  can  rescind  his  subscription  and  recover  the  amount  paid  thereon. 
Mu'.-k  ?'.  Latta,  83  App.  Div.,  242. 

When  directors  are  not  necessary  parties  in  action  to  rescind,  etc.  Mack  v. 
Latta,  83  App.  Div.,  212. 

§  42.  Consideration  for  issue  of  stock  and  boads.— No  corporation  shall 
issue  either  stock  or  bonds  except  for  money,  labor  done  or  property  actually 
received  for  the  use  and  lawful  purposes  of  such  corporation.  Any  corporation 
m-iy  purchase  any  property  authorized  by  its  certificate  of  incorporation,  or  nec- 
t'or  the  use  and  lawful  purposes  of  such  corporation,  and  may  issue  stock 
to  the  amount  of  the  value  thereof  in  payment  therefor,  and  the  stock  so  issued 
shall  be  full  paid  stock  and  not  liable  to  any  further  c.ill,  neither  shall  the  holder 
thereof  be  liable  t\>r  any  further  payment  under  any  of  the  provisions  of  this 
act ;  and  in  the  absence  of  fr.iud  in  the  transact!. m  the  judgment  of  the  directors 
as  to  the  value  of  the  property  purchased  shall  be  conclusive  ;  aud  in  all  state- 
ments and  reports  of  the  corporation,  by  law  requireil  to  be  published  or  tiled, 
this  stock  shall  n->t  be  stated  or  reported  as  being  issued  for  cash  paid  to  the 
corporation,  but  shall  be  reported  as  issued  for  property  purchased. 

Amended  by  ch.  354  of  1901,    In  effect  April  1C,  1901. 

Former  section  42  amended. 

section  14,  chap.  40  of  1848,  and  section  14,  chap.  Oil  of  1875,  now  repealed. 

The  company  can  not  issue  its  stock  as  full  paid  at  anything  less  than  par  value. 
Gra'.nUe  v.  Queens  Co.  W.  Co.,  123  N.  Y.,  93.  The  amount  of  the  nominal  or  ptu 
value  of  the  stock  must  be  put  against  the  value  of  the  property  purchased.  Id 
This,  section  contemplates  clearly  that  only  the  amount  of  the  stock  as  named  in 
the  scrip  is"  to  be  issued  to  the  amount  of  the  value  of  the  property,  and  is  there  to 
be  regarded  as  full  paid  stock.  Id. 

The  fair  value  contemplated  by  this  section  is  that  of  the  property  at  the  time  of 
the  sale.  Huntingtonw.  Attrill,  118  N.  Y.,  365  ;  Hatch  v.  Same,  id.,  383.  Thiscon- 
Btifules  the  consideration,  upon  which  the  subscription  to  the  capita.!  stock  of  the 
company,  is  satisfied.  Id. 

When  directors  have  power  to  issue  stock  for  accounts.  Gurney  v.  W.  T.  &  8. 
Co.,  57  Supi-.,  444. 

•The  application  upon  hia  stock  of  an  account  for  services  rendered  in  construct- 
in','-  furnaces  for  the  company  by  a  subscriber  for  original  stock,  is  a  payment  in 
y  the  meaning  of  this  section.     Veeder  v.  Mudgett,  95  N.  Y.,  295. 
.i^iiitioii  may  ...sue  stock  for  portion  of  pu:eh:ise  price,  and  may  pay  In 
>r  issue  bonds  for  balance.     Gamble  <•.  QUC.'M,  0.  W.  Co.,  ante. 
kliolders  to  whom  full  paid  stock  was  issued  tor  less  than  par  only  liable 
to  amount  he  agreed  to  pay.    Thompson  ».  Knight  74  App.  Div.  316. 

$  43.  Time  of  payment  of  subscriptions  to  stock.— Subscriptions  to  the 
capital  stock  of  a  corporation  shall  be  paid  at  such  times  and  in  such  install- 
ments as  the  board  of  directors  may  by  resolution  require.  If  default  shall  be 
made  in  the  payment  of  any  installment  as  required  by  such  resolution,  the 
board  may  declare  the  stock  aud  all  previous  payments  thereon  forfeited  for  the 
use  of  the  corporation,  after  the  expiration  of  sixty  days  from  the  service  on  the 
defaulting  stockholder,  personally  or  by  mail  directed  to  him  at  his  last  known 
postoffice  address,  of  a  written  notice  requiring  him  to  make  payment  within 
sixty  days  from  the  service  of  the  notice  at  a  place  specified  therein,  and  stating 
that,  In  case  of  failure  to  do  so,  his  stock  and  all  previous  payments  thereon  wiU 
be  forfeited  for  the  use  of  the  corporation. 

44 


STOCK  CORPORATION  LAW. 

Such  stock,  if  forfeited,  may  be  reissued  or  subscriptions  therefor 
may  be  received  as  in  the  case  of  stock  not  issued  or  subscribed  for.  If 
not  sold  for  its  par  value  or  subscribed  for  within  six  months  after  such 
forfeiture,  it  shall  be  canceled  and  deducted  from  the  amount  of  the 
capital  stock.  If  by  such  cancellation  the  amount  of  the  capital  stock 
is  reduced  below  the  minimum  required  by  law,  the  capital  stock  shall 
be  increased  to  the  required  amount  within  theree  months  thereafter  or 
an  action  may  be  brought  or  proceedings  instituted  to  close  up  the 
business  of  the  corporation  as  is  the  case  of  an  insolvent  corporation. 
If  a  receiver  of  the  assets  of  the  corporation  has  been  appointed,  all  un- 
paid subscriptions  to  the  stock  shall  be  paid  at  such  times  and  in  such 
installments  as  the  receiver  or  the  court  may  direct. 
Former  section  43  amended. 

See  section  5,  chap.  67  of  1811,  section  6,  chap.  40  of  1848,  section  11,  chap.  611 
of  1875,  and  section  1,  chap.  102  of  1883,  now  repealed. 

The  corporation,  when  formed,  may  enforce  payment  of  the  subscriptions  to  its 
capital  stock  against  persons  who  subscribe  its  articles  of  association  before  the 
corporate  body  has  a  legal  existence.  Don-is  v.  French,  4  Hun,  292  ;  Buff.,  etc., 
R.  R.  Co.,  v.  Hatch,  20  N.  Y.,  161  ;  Burr  v.  Wilcox,  22  id.,  551  ;  Strong  v.  Wheaton, 
38  Barb.,  616. 

When  payment  of  subscriptions  to  be  made.  Williams  v.  Taylor,  120  N.  Y., 
244;  L.  0.  A.  &  N.  Y.  R.  R.  Co.  v.  Mason,  16  id.,  451 ;  White  v.  Haight,  id.,  310; 
Howland  v.  Edmonds,  24  id.,  307;  Tuckerman  v.  Brown,  33  id.,  297. 

The  power  of  the  directors  to  forfeit  the  stock  in  the  manner  prescribed  in  this 
section  is  clearly  given,  and  is  to  be  exercised  at  their  discretion.  Mills  v. 
Stewart,  62  Barb.,  444  •„  aff 'd  41  N.  Y.,  384.  The  only  limitation  on  this  power  is 
that  it  is  done  in  the  manner  prescribed  and  in  good  faith.  Id.  The  right  of  the 
creditor  to  sue  a  stockholder  for  the  amount  of  his  unpaid  stock  is  not  independent 
of,  but  subordinate  to,  the  right  of  the  directors  to  compromise  the  claim  or  to  forfeit 
the  stock.  Id.  After  such  forfeiture  in  good  faith,  the  holder  of  unpaid  stock 
ceases  to  be  a  stockholder  and  liable  as  such  to  any  creditor  of  the  corporation  by 
reason  of  such  unpaid  installment  on  his  stock.  Id.  A  fraudulent  forfeiture  is 
void  as  to  creditors,  and  the  stockholder  liable  notwithstanding.  Id. 

The  right  of  the  company  to  make  a  demand  for  the  unpaid  balances  due  upon 
the  stock  is  limited  to  stockholders  as  such.  Billings  y.  Robinson,  28  Hun,  122. 

Many  and  onerous  obligations  are,  by  the  statute,  imposed  upon  stockholders, 
which  are  not  imposed  upon  mere  subscribers  for  stock  who  have  not  received 
certificates  therefor,  ante. 

A  subscription  to  the  articles  of  incorporation,  with  a  statement  of  the  number 
of  shares  opposite  the  name,  is  a  sufficient  and  binding  subscription  for  the  stock, 
and  takes  effect  upon  the  filing  of  the  certificate.  Phoenix  W.  Co.  v.  Badger,  67 
N.  Y.,  294;  Buffalo,  etc.,  Co.  v.  Dudley,  14  id.,  336 ;  Lake  Ontario,  etc.,  R.  R.  Co. 
v.  Mason,  I*!  id.,  451  ;  Dayton  v.  Borst,  31  id.,  435. 

When  stock  certificates  have  been  delivered  to  the  subscriber  for  the  stock,  he 
becomes  a  member  of  the  company,  entitled  to  all  right  and  privileges  incident 
to  the  relation,  and  the  original  promise  is  merged  in  the  new  obligation.  Billings 
v.  Robinson,  ante. 

Persons,  who  sign  the  articles  of  association  of  a  manufacturing  company,  are 
stockholders.  Strong  v.  Wheaton,  38  Barb.,  616.  When  the  holding  of  stock  is 
once  established,  it  must  be  presumed  to  continue  until  its  surrender  or  assign- 
ment is  shown.  Id. 

One,  to  whom  stock  has  been  apportioned  in  a  corporation,  is  a  stockholder, 
though  no  certificate  has  been  issued.  Burr  v.  Wilcox,  22  N.  Y.,  551.  This  is  the 
case,  even  though  the  apportionment  was  made  for  him  to  an  agent,  who  subscribed 
at  his  request.  Id.  The  members,  as  soon  as  the  corporation  has  any  property 
or  valuable  franchise,  become  stockholders  in  proportion  to  their  respective  in 
terests.  Id. 

An  agreement  to  take  stock  in  a  corporation  to  be  thereafter  formed  become* 
binding  on  the  organization  of  the  corporation  and  its  acceptance  of  the  agreement. 
Buffalo  &  J.  R.  R.  Co.  v.  Clark,  22  Hun,  359  ;  aff'd  87  N.  Y.,  294  ;  Stanton  «. 
Wilson,  2  Hill,  153 ;  Ref.  Bo.  D.  Ch.  v.  Brown,  29  Barb.,  335 ;  Buffalo  &  N.  Y.  C. 
R.  R,  Co.  v.  Dudley,  14  N.  Y.,  336 ;  Buffalo  &  P.  R.  R.  Co.  t>.  Hatch,  20  id.,  157. 

45 


STOCK  CORPORATION  LAW. 

Where  a  person,  after  his  subscription  and  after  the  company  is  fully  organized 
recognizes  the  existence  of  the  contract  by  making  payments  upon  the  shares  as 
called  for  by  the  company,  and_receiving  a  certificate  for  such  shares,  a  legal  lia- 
bility on  his  part  is  created  to  pay  the  full  amount  of  his  subscription  as  called  fo* 
by  the  company.  Billings?).  Robinson,  ante;  Phoenix  W.  Co.  v.  Badger,  67  N.  Y., 
294 ;  Dayton  v.  Borst,  31  id.,  435.  This  liability  continues  until  the  company 
releases  or  surrenders  up  its  right  of  action.  Id. 

Payment  of  the  calls  made  upon  the  capital  stock  under  this  section  may  be 
enforced  by  an  action  upon  the  undertaking  of  the  stockholder,  notwithstanding 
this  section  authorizes  a  forfeiture  of  the  stock  in  case  of  non-payment.  Troy  & 
B.  R.  R.  Co.  v.  Tibbetts,  18  Barb.,  297 ;  Ogdensburg,  R.  &  C.  R.  R.  Co.  v.  Frost, 
21  id.,  541 ;  Northern  R.  R.  Co.  v.  Miller,  10  id.,  269. 

The  remedy  by  forfeiture  of  stock  on  non-payment  of  calls  is  merely  cumulative, 
and  does  not  deprive  the  company  of  its  remedy  by  action  on  the  assumpsit. 
Buffalo  &  N.  Y.  C.  R.  R.  Co.  v.  Dudley,  14  N.  Y.,  336 ;  Northern  R.  R.  Co.  «. 
Miller,  10  Barb.,  260 ;  Mann  v.  Currie,  2  Barb.,  294. 

The  right  of  an  incorporated  company  to  enfore  a  forfeiture  of  stock,  and  all 
previous  payments,  upon  the  failure  of  a  stockholder  to  meet  the  calls  made  by 
the  company,  will  not  prevent  such  company,  or  the  receiver  thereof,  from  col- 
lecting the  balance  due  upon  any  share  of  its  stock.  Mann  v.  Currie,  2  Barb.,  294. 
The  rule  is  the  same,  whether  the  stock  is  held  by  an  original  stockholder  or  by  an 
assignee.  Id.  The  latter,  by  the  transfer,  adopts  the  contract  of  his  assignor 
with  the  company,  and  becomes  substituted  in  his  place  both  as  regards  his  rights 
and  his  liabilities.  Id. 

It  was  held  in  Rensselaer,  etc.,  v.  Barton,  16  N.  Y.,  457,  that  an  agreement  to 
take  stock  imports  a  promise  to  pay  for  it.  But  in  Seymour  v.  Sturgess,  26  N.  Y., 
134,  the  court  held  that  no  contract  to  pay  for  the  stock  can  be  implied  from  the 
mere  purchase.  The  effect  of  the  purchase  is  to  acquire  a  title  conditional  upon 
making  the  remaining  payments,  but  leaves  such  payments  optional  with  the  pur- 
chaser. Id.  It  is  only  where  there  is  an  express  agreement  to  pay  that  an  action 
will  lie  by  the  corporation.  Id.  But  if  there  is  no  such  agreement,  the  sole 
remedy  for  the  corporation  is  by  a  sale  of  the  shares  of  the  delinquent  members. 
Id.;  Wintringham  v.  Rosenthal,  25  Hun,  580. 

A  failure  to  pay  calls  when  due,  not  only  divests  the  holder  of  his  title  and 
interest  in  the  shares,  but  vests  his  interest  in  the  corporation  and  remaining 
stockholders.  Weeks  v.  Silver  Islet,  etc.,  Co.,  54  Supn.,  1.  The  interests  of  the 
latter  become  enhanced  in  value  by  the  addition  of  the  shares  which  the  delin- 
quent stockholder  has  lost.  Id.  Such  right  can  not  be  divested  upon  the  delinquent 
stockholder's  willingness  to  pay  the  calls  after  considerable  time  has  been  afforded 
him  to  do  so,  and  his  laches  and  delay  have  caused  the  corporation  and  non-delin- 
quent stockholders  to  treat  his  stock  as  forfeited.  Id. 

Such  action  may  be  brought  upon  the  original  subscription.  Phoenix  W.  Co.  •». 
Badger,  67  N.  Y.,  294.  It  is  not  necessary  to  aver  calls,  at  least  after  the  lapse 
of  two  years  from  the  time  of  incorporation.  Id.;  Rensselaer,  etc.,  Co.  v.  Barton,  16 
N.  Y.,  457  note;  Lake  Ontario,  etc.,  R.  R.  Co.  v.  Mason,  id.,  451. 

The  interest  acquired,  on  the  incorporation  of  the  company,  by  a  subscriber  to 
its  stock  is  a  good  consideration  to  support  his  implied  promise  to  pay  for  such 
stock.  Buffalo  &  N.  Y.  C.  R.  R.  Co.  v.  Dudley,  14  N.  Y.,  336. 

A  corporation,  after  it  has  forfeited  the  stock  of  a  subscriber  for  non-payment 
of  an  installment  due  upon  his  subscription,  can  not  maintain  an  action  to  recover 
any  part  of  such  subscription.  Small  v.  Herkimer  Mfg.  Co.,  2  N.  Y.,  330.  The 
exaction  of  the  forfeiture  operates  as  a  rescission  or  satisfaction  of  the  contract.  Id. 
Nor  can  the  stockholder,  in  such  case,  recover  any  surplus.  Id. 

For  interest  of  defaulting  shareholder,  and  the  rights  of  the  corporation,  in  the 
forfeited  shares,  see  Weeks  v.  Silver  Islet  C.  M.  &  L.  Co.,  8  N.  Y.  St.  Rep.,  110. 
Such  shares  become  vested  in  the  other  stockholders.  Id.  They  can  not  be 
deprived  of  such  interest  without  their  consent  or  due  process  of  law.  Id.  When 
court  of  equity  will  not  relieve  from  effect  of  forfeiture.  Id. 

The  liability  of  a  stockholder  of  a  corporation  for  the  amount  unpaid  on  stock 
owned  by  him,  can  be  enforced  only  by  a  creditor.  Tucker  v.  Oilman,  45  Hun, 
193.  It  can  not  be  enforced  by  a  receiver.  Id.;  Farnsworth  v.  Wood,  91  N.  Y., 
808  ;  Mann  v.  Pentz,  3  id.,  415. 

Where  the  stock  is  transferred  on  the  books  to  a  person  who  appears  to  b«  the 
legal  owner,  such  person  is  liable,  though  it  is  held  by  him  as  collateral  security 
tor  *  debt.  Rosevelt  v.  Brown,  11  N.  Y.,  148  ;  Cutting  v.  Damerel,  88  N.  Y.,  410. 

46 


STOCK  CORPORATION  LAW. 

Where  transfer  of  stock  ia  made  with  due  observance  of  the  condition*  of  the 
sections  regulating  the  mode  and  manner  of  transfer,  and  is  entered  into  in  good 
faith,  the  liability  to  pay  future  calls  ceases,  and  the  obligation  to  pay  unpaid 
balances  is  shifted  from  the  assignor  to  the  assignee.  Billings  t>.  Robinson,  ante. 

Where  the  assignee  ef  the  share  of  stock  is,  under  the  statute,  liable  for  the 
balance  unpaid  thereon,  and  the  company  has  assented  to  the  transfer  by  entering 
It  upon  its  books,  it  has  thereby  released  the  assignor  from  the  liability  imposed 
upon  him  by  the  original  subscription  papers,  and  can  not,  nor  can  its  receiver, 
maintain  an  action  to  enforce  the  same  against  him.  Billings  v.  Robinson,  ante. 

A  receiver  occupies  no  other  position,  and  has  no  better  right  than  the  corpora- 
tion. Cutting  v.  Damerel,  88  N.  Y.,  410. 

A  receiver  can  not  maintain  an  action  against  one  who  was  formerly  a  stock- 
holder of  the  corporation,  to  collect  the  amount  unpaid  upon  the  shares  of  stock 
gold  and  transferred  by  him,  unless  the  corporation  itself  could  have  maintained 
such  an  action,  if  it  had  been  brought  prior  to  the  time  when  the  receiver  was 
appointed.  Billings  -u.  Robinson,  ante. 

An  action  under  this  section,  may  be  continued  by  a  receiver,  subsequently 
appointed,  in  the  name  of  the  original  party.  Phoenix  W.  Co.  v.  Badger,  67  N. 
Y.,  294;  Rankine  v.  Elliott,  16  id.,  377  ;  Tracy  v.  First  Nat.  Bk.,  87  id.,  623. 

An  alteration  by  the  legislature  of  the  company's  charter,  in  pursuance  of  power* 
reserved,  does  not  discharge  a  stockholder  from  liability  on  his  subscription, 
where  it  is  duly  made  and  without  any  fraud  on  the  part  of  the  company.  Buffalo 
&  N.  Y.  C.  R.  R.  Co.  v.  Dudley,  14  N.  Y.,  336. 

A  subscriber  to  the  capital  stock  of  a  corporation,  who  has  failed  to  pay  for  the 
shares  subscribed  for,  as  required  by  the '  terms  of  his  subscription,  is  properly 
chargeable  with  interest  from  the  time  of  the  default.  Gould  v.  Town  of  Oneonta, 
71  N.  Y.,  298.  He  can  not  compel  the  company  to  issue  the  stock,  until  not  only 
the  principal,  but  the  interest,  is  paid.  Id. 

Subscriptions,  based  on  issue  of  capital  stock  at  less  than  par  value,  are  not  en- 
forceable. Zel.  M.  Co.  v.  Meyer,  28  N.  Y.  St.  Rep.,  759. 

Subscriber's  knowledge  does  not  aid  enforcement.     Id. 

Owners  of  fully  paid  up  stock  are  entitle  to  enjoin  corporation  from  declaring 
forfeiture  of  their  stock.  Moore  v.  N.  J.  L.  Co.,  57  Supr.,  1. 

A  judgment  creditor  of  the  corporation  will  be  restrained  from  prosecuting  an 
action  against  a  stockholder  for  the  amount  of  his  unpaid  subscription  to  its 
capital,  where  such  action  is  commenced  after  the  making  of  an  order  of  sequestra- 
tion, though  before  the  appointment  of  the  receiver  under  it  is  perfected.  Ran- 
kine v.  Elliott,  16  N.  Y.,  380. 

Fraud  of  corporation  will  relieve  subscriber  to  stock,  on  prompt  rescission,  be- 
fore any  equities  intervene.  McDermott  v.  Harrison  (Sup.  Ct.  1890),  30,  324  ;  80 
K.  Y.  St.  Rep.,  324. 

When  action  to  recover  against  stockholder  amount  unpaid  on  stock,  can  not  bt 
.Maintained.  Christenson  v.  Quintai-d,  29  N.  Y.  St.  Rep.,  61. 

§  44.  Increase  or  reduction  of  oapit  1  stock.— Any  domestic  cor- 
poration may  increase  or  reduce  its  capital  stock  in  the  manner  herein  pro- 
vided, but  not  above  the  maximum  or  below  the  minimum,  if  any,  prescribed 
by  general  law  governing  corporations  formed  for  similar  purposes.  If  increased, 
the  holders  of  the  additional  stock  issued  shall  be  subject  to  the  same  liabili- 
ties with  respect  thereto  as  are  provided  by  law  in  relation  to  the  original 
capital ;  if  reduced,  the  amount  of  its  debts  and  liabilities  shall  not  exceed  the 
amount  of  its  reduced  capital,  unless  an  insurance  corporation,  in  which  case  the 
amount  of  its  debts  and  liabilities  shall  not  exceed  the  amount  of  its  reduced 
capital  and  other  assets.  The  owner  of  any  stock  shall  not  be  relieved  from  any 
liability  existing  prior  to  the  reduction  of  the  capital  stock  of  any  stock  corpora- 
tion. If  a  banking  corporation,  whether  the  capital  be  increased  or  reduced,  its 
assets  shall  at  least  be  equal  to  its  debts  and  liabilities  and  the  capital  stock,  as 
increased  or  reduced.  A  domestic  railroad  corporation  may  increase  or  reduce  its 
capital  stock  in  the  manner  herein  provided,  notwithstanding  any  provision  con- 
tained herein,  or  in  any  general  or  special  law  fixing  or  limiting  the  amount  of 
capital  stock  which  may  be  issued  by  it. 

Amended  by  ch.  354  of  1901.     In  effect  April  16,  1901. 

47 


STOCK  CORPORATION  LAW. 

611  of  1876 ;  Motion  1,  chap.  264  of  1878,  and  section  2,  chap.  397  of  1884,  now 
repealed. 

In  the  absence  of  evidence  to  the  contrary,  a  corporation  will  be  presumed  to 
have  acted,  in  increasing  its  stock,  in  conformity  with  its  corporate  powers  and  its 
articles  of  association.  Williams  v.  W.  N.  T.  Co.,  9  Abb.  N.  C.  437  ;  Chautauqua 
Co.  Bk.  v.  Riskey,  19  N.  Y.  369;  De  Groff  v.  Am.  L.  T.  Co.,  21  id.,  124. 

The  i  ight  to  grant  or  withhold  assent  to  change  the  relative  value  of  the  share* 
of  stock  belongs  to  their  owners  as  individuals,  to  be  enjoyed  and  exercised  by 
by  them  in  severally.     Campbell  v.  American  Zylonite  Co..  122  N.  Y.,  464. 
Fixing  the  amount  of  capital  stock.     Sutherland  v.  Olcott,  29  Hun,  161. 
A  corporation  has  no  implied  authority  to  increase  or  diminish  its  capital  stock. 
Sutherland  v.  Olcott,  95  N.  Y.,  93;  Salem  M.  D.  Corp.  v.  Ropes,  6  Pick.,  23.     It 
can  do  so  on  when  and  so  authorized  by  statute.     Id. 

A  corporation  can  not  increase  its  capital  stock  at  will,  in  any  manner,  or  to  any 
extent,  unless  authorized  to  do  so  by  its  charter,  and  then  only  in  the  manner 
prescribed.  Lathrop  v.  Kneeland,  46  Barb.,  432. 

This  section  is  intended  to  apply  not  only  to  corporations  which  have  an  actual, 
but  also  to  those  which  have  no  market  value.  People  ex  rel.  Eden  M.  A.  Co.  v. 
Carr,  36  Hun,  488.  If  the  stock  is  valueless,  then  clearly  its  market  value  is  lee* 
than  par.  Id.  Where  it  is  a  stock  which  is  seldom  bought  or  sold,  the  comptroller 
can  ascertain  to  his  satisfaction  its  actual  market  value  sufficiently  at  least  to 
enable  him  to  guard  against  the  danger  at  which  this  provision  of  the  act  is 
aimed.  Id. 

Corporations  are  not  to  be  allowed  to  reduce  their  capital  when  their  stock  is 
above  par  in  the  market.  Id. 

Action  of  corporation  and  registered  shareholders  in  reducing  relative  value  of 
shares  by  contract  to  surrender  percentage  of  stock,  is  not  binding  upon  assignees 
having  possession  of  certificate,  though  holding  under  unregistered  transfers. 
Campbell  v.  Am.  Z.  Co.,  122  N.  Y.,  455;  rev'g  23  J.  &  S.,  592. 

When  notice  may  be  waived.  Hallett  ».  Met.  Mess.  Co.  69  App.  Div.  258. 
§  45.  Notice  of  meeting  to  increase  or  reduce  capital  stock. — 
Every  such  increase  or  reduction  must  be  authorized  either  by  the 
unanimous  consent  of  the  stockholders,  expressed  in  writing  and  filed 
in  the  office  of  the  secretary  of  state  and  in  the  office  of  the  clerk  of 
the  county  in  which  the  principal  business  office  of  the  corporation  is 
located,  or  by  a  vote  of  the  stockholders  owning  at  least  a  majority  oJ 
the  stock  of  the  corporation,  taken  at  a  meeting  of  the  stockholders 
specially  called  for  that  purpose  in  the  manner  provided  by  law  or  by 
the  by-laws.  Notice  of  the  meeting,  stating  the  time,  place  and  object, 
and  the  amount  of  the  increase  or  reduction  proposed,  signed  by  the 
president  or  a  vice  president  and  the  secretary,  shall  be  published  once 
a  week,  for  at  least  two  successive  weeks,  in  a  newspaper  in  the  county 
where  its  principal  business  office  is  located,  if  any  is  published  therein, 
and  a  copy  of  such  notice  shall  be  duly  mailed  to  each  stockholder 
or  member  at  his  last-known  post-office  address  at  least  two  weeks  before 
the  meeting  or  shall  be  personally  served  on  him  at  least  five  days 
before  the  meeting. 

Amended  by  ch.  354  of  1901.    In  effect  April  16,  1901. 

See  section  21,  chap.  40  of  1848,  section  16,  chap.  611  of  1876,  and  section  2, 
chap.  264  of  1878,  now  repealed. 

In  the  absence  of  evidence  that  due  and  sufficient  notice  of  the  meeting  was  not 
given  to  the  stockholders,  the  books  of  minutes  of  the  company  and  the  certificate 
showing  that  more  than  two-thirds  of  the  stockholders  appeared  in  person  or  by 
proxy,  and  voted  for  the  increase  of  the  stock,  establishes,  in  an  action  to  enforce 
an  assessment  upon  stock,  that  the  stock  was  increased  at  a  regularly  assembled 
meeting  of  the  stockholders.  Cuykendall  v.  Douglas,  19  Hun,  577. 

§  46.  Conduct  of  such  meeting;  certificate  of  increase  or  reduc- 
tion.— If,  at  the  time  and  place  specified  in  the  notice,  the  stockholders 
shall  appear  in  person  or  by  proxy  in  numbers  representing  at  least  a 
majority  of  all  the  shares  of  stock,  they  shall  organize  by  choosing 
from  their  number  a  chairman  and  secretary,  and  take  a  vote  of  those 

48 


STOCK  CORPORATION  LAW. 

present  in  person  or  by  proxy,  and  if  a  sufficient  number  of  votes  shall 
be  given  m  favor  of  such  increase  or  reduction,  or  if  the  same  shall 
have  been  authorized  by  the  unanimous  consent  of  stockholders  ex- 
pressed in  writing  signed  by  them  or  their  duly  authorized  proxies,  a 
certificate  of  the  proceedings  showing  a  compliance  with  the  provisions 
of  this  chapter,  the  amount  of  capital  theretofore  authorized,  and  the 
proportion  thereof  actually  issued,  and  the  amount  of  the  increased  or 
reduced  capital  stock,  and  in  case  of  the  reduction  of  capital  stock 
the  whole  amount  of  the  ascertained  debts  and  liabilities  of  the  corpo- 
ration shall  be  made,  signed,  verified  and  acknowledged  by  the  chair- 
man and  secretary  of  the  meeting,  and  filed  in  the  office  of  the  clerk 
of  the  county  where  its  principal  place  of  business  shall  be  located, 
and  a  duplicate  thereof  in  the  office  of  the  secretary  of  state.    In  case 
a  reduction  of  the  capital  stock,  except  of  a  railroad  corporation  or  a 
moneyed  corporation,  such  certificate  or  consent  hereinafter  provided 
for  shall  have  indorsed  thereon  the  approval  of  the  comptroller,  to 
the  effect  that  the  reduced  capital  is  sufficient  for  the  proper  purposes 
of  the  corporation,  and  is  in  excess  of  its  ascertained  debts  and  liabil- 
ities ;  and  in  case  of  the  increase  or  reduction  of  the  capital  stock  of  a 
railroad  corporation  or  a  moneyed  corporation,  the  certificate,  or  the 
unanimous  consent  of  stockholders  as  the  case  may  be  shall  have  in- 
dorsed thereon  the  approval  of  the  board  of  railroad  commissioners, 
if  a  railroad  corporation;    of  the  superintendent  of  banks,  if  a  cor- 
poration formed  under  OP  subject  to  the  banking  law,  and  of  the 
superintendent  of  insurance  if  an  insurance  corporation.     When  the 
certificate  herein  provided  for,  or  the  unanimous  consent  of  stock- 
holders in  writing,  signed  by  them  or  their  duly  authorized  proxies, 
approved  as  aforesaid,  has  been  filed,  the  capital  stock  of  such  corpo- 
ration shall  be  increased  or  reduced,  as  the  case  may  be,  to  the  amount 
specified  in  such  certificate  or  consent    The  proceedings  of  the  meet- 
ing at  which  such  increase  or  reduction  is  voted,  or,  if  such  increase  or 
reduction  shall  have  been  authorized  by    unanimous  consent  without 
a  meeting,   then  a  copy  of  such  consent  shall  be  entered  upon  the 
minutes   of  the  corporation.    If  the  capital  stock  is  reduced,  the  amount  of 
capital  over  and  above  the  amount  of  the  reduced  capital  shall,  if  the  meeting  or 
consents  so  determine  or  provide,  be  returned  to  the  stockholders  pro  rata,  at 
such  times  and  in  such  manner  as  the  directors  shall  determine,  except  in  the  case 
of  the  reduction  of  the  capital  stock  of  an  insurance  corporation,  as  an  alternative 
to  make  good  an  existing  impairment. 

Amended  by  ch.  354  of  1901.     In  effect  April  16,  1901. 
Amended  by  ch.  286  of  1902.     In  effect  March  20,  1902. 
See  section  22,  chap.  40,  of  1848;    section  3,  chap.  264,  of  1878,  and  section 
3,  chap.  306,  of  1882,  now  repealed. 
Amended  by  ch.  123  of  1904.     In  effect  March  23,  1904. 
A  person  who  was  named  as  one  of  the  trustees  in  the  articles  of  association  and 
had  acted  as  such  at  a  prior  meeting1,  was  held  to  be  qualified  to  act  as  chainnaq 
B,t  a  meeting  called  under  this  section.     Cuykendall  v.  Douglas,  19  Hun,  677. 

The  object  of  this  provision  in  the  statute  was  to  provide  a  mode  of  proof  of 
the  instrument,  to  establish  its  genuine  character.  Id.  Where  the  signature  of 
the  chairman  h  in  the  presence  of  the  justice,  and  the  latter  has  witnessed  and 
certified  it,  the  object  of  the  statute  is  answered.  Id.  A  certificate  of  ac- 
knowledgment is  only  required  to  be  in  "  substantial  compliance "  with  the 
statute.  Id.;  Thurman  v.  Cameron,  24  Wend.,  87 ;  West  P.  I.  Co.  v.  Reymert,  45 
N.  Y.t  703 ;  Can.  Acad.  v.  McKechnie,  19  Hun,  63. 

The  amount  of  the  capital  may  be  reduced  before  it  has  been  actually  paid  i 
Strong  v.  Brooklyn  C.-T.  R.  R.  Co.,  93  N.  Y.,  426.     The  reduced  amount  may  stil 
exceed  the  sum  which  has  been  actually  paid  in,  and  in  that  case,  the  stockholders 
must  pay  it  in   after  the   reduction.     Id.     In  such  case,  there  can  be  no  surplus 
for  distribution.     Id.     The  reduced  amount  becomes  the  amount  which  the  com- 
pany is  bound  by  law  to  provide  as  capital.     Id. 

To  authorize  a  corporation  to  avail  itself  of  the  provisions  of  this  sect  on,  it 
must  obtain  the  certificate  of  the  Comptroller  that  the  market  value  of  its  stock  is 
IMS  than  par.  Id.  The  reduction  which  the  act  has  in  view  is  the  reduction  of 

49 


(he  nominal  capital  to  an  amount  which  shall  correspond  with  its  actual  value, 
rather  than  a  withdrawal  and  distribution  of  actual  capital.  Id.  See  Seeley  v. 
N.  Y.  Nat.  Ex.  Bk  ,  8  Daly,  400;  aff'd  78  N.  Y.,  608. 

There  was  no  provision  in  the  former  law  for  returning  any  portion  of  the  actual 
capital  held  by  the  company  to  the  stockholders,  nor  for  any  inquiry  into  the 
financial  condition  of  the  company,  beyond  the  fact  how  much  of  the  capital  was 
paid  in  and  the  amount  of  its  debts  not  secured  by  trust  mortgages.  Strong  v. 
Brooklyn  C.-T.  R.  R.  Co.,  ante.  But  the  above  section  (46)  provides  that  in  case 
the  capital  stock  is  reduced,  the  amount  of  capital  over  and  above  the  amount  of 
the  reduced  capital  shall  be  returned  to  the  stockholders  pro  rata  at  sucl-  times 
and  in  such  manner  as  the  directors  shall  determine. 

To  authorize  such  a  distribution,  if  the  original  capital  has  been  paid  in,  it 
Bhould  appear  that  the  capital  so  paid  in  has  not  been  impaired  ;  and,  if  it  has 
been  impaired,  it  should  appear  that  the  corporation  still  has  on  hand  actual  capital, 
available  for  the  payment  of  debts,  exceeding  the  amount  to  which  it  has  reduced 
its  capital.  Strong  v.  Brooklyn  C.-T.  R.  R.  Co.,  id.  If  it  has,  the  excess  only 
ought  to  be  distributed.  Id. 

The  surplus,  which  a  corporation,  in  such  case,  is  at  liberty  to  pay  to  its  stock- 
holders, must,  in  every  case,  be  ascertained,  and  depends  upon  the  result  of  an 
examination  into  its  affairs,  and  not  upon  the  difference  between  the  original 
amount  of  capital  and  the  reduced  amount.  Id.  Whenever  the  corporation,  by 
sales  of  property,  or  by  means  of  earnings,  or  otherwise,  comes  in  possession  oi 
funds  which  are  in  excess  of  the  reduced  amount  fixed  as  capital,  it  can  distribute 
that  excess  without  violating  any  law.  Id. 

Upon  the  increase  of  the  capital  of  a  corporation,  the  trustees,  in  disposing  of 
the  increased  stock,  are  to  be  considered  as  trustees  for  those  holding  shares  of 
the  original  stock,  and  it  is  their  duty  to  so  dispose  of  them  that  as  much  value  as 
possible  shall  be  returned  to  the  corporation  for  its  business  purposes.  Williams 
-o.  W.  U.  T.  Co.,  9  Abb.  N.  C.,  419. 
See  Sullivan  v.  Parker,  69  App.  Div.  221. 

§  47.  Preferred  and  common  stock. — Every  domestic  stock  corporation 
may  issue  preferred  stock  and  common  stock  and  different  classes  of  preferred 
stock,  if  the  certificate  of  incorporation  so  provides,  or  by  the  consent  of  the 
holders  of  record  of  two-thirds  of  the  capital  stock,  given  at  a  meeting  called  for 
that  purpose  upon  notice  such  as  is  required  for  the  annual  meeting  of  the 
corporation.  A  certificate  of  the  proceedings  of  such  meeting,  signed  and 
sworn  to  by  the  president  or  a  vice-president,  and  by  the  secretary  or  assistant 
secretary,  of  the  corporation,  shall  be  fined  and  recorded  in  the  offices  where 
the  original  certificate  of  incorporation  of  such  corporation  was  filed  and 
recorded;  and  the  corporation  may,  upon  the  written  request  of  the  holders 
of  any  preferred  stock,  by  a  two-thirds  vote  of  its  directors,  exchange  the 
same  for  common  stock,  and  issue  certificates  for  common  stock  therefor,  upon 
such  valuation  as  may  have  been  agreed  upon  in  the  certificate  of  organization 
of  such  corporation,  or  the  issue  of  such  preferred  stock,  or  share  for  share, 
hut  the  total  amount  of  such  capital  stock  shall  not  be  increased  thereby. 
Amended  by  ch.  354  of  1901.  In  effect  April  16,  1901. 
See  section  1,  chap.  225  of  1880,  now  repealed. 

There  is  no  power  in  a  corporate  body,  nor  in  a  majority  of  the  stockholders, 
to  provide  by  a  by-law  for  the  creation  of  a  preferred  stock,  so  as  to  bind  a 
minority  of  the  stockholders  not  assenting  thereto.  Kent  r.  Quicksilver  M.  Co., 
78  N.  Y.  159. 

A  corporation  may  begin  its  corporate  action  by  classifying  the  shares  in  its 
capital  stock,  with  peculiar  privileges  to  one  share  over  another,  and  thus  offer 
its  stock  to  the  public  for  subscriptions  thereto.  Id. 

Purchaser  of  stock  takes   it  subject  to  right  of  legislature  to  amend  law. 

Hinckley  v.  Schwarzschild  &  Sulzboyer,  45  Misc.  176,  aff'd  107  App.  Div.  470. 

Amendment  of  chap.  354  of  1901,  permitting  corporations  to  issue  preferred 

stock  with  the  consent  of  two-thirds  of  stockholders,  held  valid.     Hinckley  v. 

Schwarxschild  &  Sulzberger  Co.,  107  App.  Div.  470. 

§  48.  Prohibited  transfers  to  officer!  or  stockholders. — No  corpora- 
tion which  shall  have  refused  to  pay  any  of  its  notes  or  other  obliga- 
tions, when  due,  in  lawful  money  of  the  United  States,  nor  any  of  its 
officers  or  directors,  shall  transfer  any  of  its  property  to  any  of  it* 

50 


STOCK  CORPORATION  LAW. 

officers,  directors  or  stockholders,  directly  or  indirectly,  for  the  payment 
of  any  debt,  or  upon  any  other  consideration  than  the  full  value  of  the 
property  paid  in  cash.  No  conveyance,  assignment  or  transfer  of  any 
property  of  any  such  corporation  by  it  or  by  any  officer,  director 
or  stockholder  thereof,  nor  any  payment  made,  judgment  suffered,  lien 
created  or  security  given  by  it  or  by  any  officer,  director  or  stockholder 
when  the  corporation  is  insolvent  or  its  insolvency  is  imminent,  with 
the  intent  of  giving  a  preference  to  any  particular  creditor  over  other 
creditors  of  the  corporation  shall  be  valid,  except  that  laborers'  wagea 
for  services  shall  be  preferred  claims  and  be  entitled  to  payment  before 
any  other  creditors  out  of  the  corporation  assets  in  excess  of  valid  prior 
liens  or  incumbrances.  No  corporation  formed  tinder  or  subject  to 
the  banking,  insurance  or  railroad  law  shall  make  any  assignment  in 
contemplation  of  insolvency.  Every  person  receiving  by  means  of  any 
such  prohibited  act  or  deed  any  property  of  the  corporation  shall  be 
bound  to  account  therefor  to  its  creditors  or  stockholders  or  other 
trustees.  No  stockholder  of  any  such  corporation  shall  make  any 
transfer  or  assignment  of  his  stock  therein  to  any  person  in  contempla- 
tion of  its  insolvency.  Every  transfer  or  assignment  or  other  act 
done  in  violation  of  the  foregoing  provisions  of  this  section  shall  be 
void.  No  conveyance,  assignment  or  transfer  of  any  property  of  a 
corporation  formed  under  or  subject  to  the  banking  law,  exceeding 
in  value  one  thousand  dollars,  shall  be  made  by  such  corporation,  or  by 
any  officer  or  director  thereof,  unless  authorized  by  previous  resolution 
of  its  board  of  directors,  except  promissory  notes  or  other  evidences 
of  debt  issued  or  received  by  the  officers  of  the  corporation  in  the 
transaction  of  its  ordinary  business  and  except  payments  in  specie  or 
other  current  money  or  in  bank  bills  made  by  such  officers.  No  such 
conveyance,  assignment  or  transfer  shall  be  void  in  the  hands  of  a 
purchaser  for  a  valuable  consideration  without  notice.  Every  director 
or  officer  of  a  corporation  who  shall  violate  or  be  concerned  in  violating 
any  provisions  of  this  section,  shall  be  personally  liable  to  the  credit- 
orsand  stockholders  of  the  corporation  of  which  he  shall  be  director  or 
an  officer  to  the  full  extent  of  any  loss  they  may  respectively  sustain 
by  such  violation. 

Amended  by  ch.  354  of  1901.    In  effect  April  16,  i901, 

The  provisions  of  this  section  are  intended  as  a  restraint  on  the  action  of  thf 
directors  and  officers  of  the  company  and  of  them  only.  Kingsley  v.  First  Nat. 
Bk.,  31  Hun,  329.  They  do  not  control  or  direct  the  action  of  creditors,  who  may 
•eek  to  collect  or  secure  payment  of  their  debts  against  the  corporation.  Id. 

This  section  declares  the  assignment  on  transfer  void,  in  case  the  same  is  made 
in  contemplation  of  insolvency.  Id.  The  simple  question  is,  was  there  actual  or 
contemplated  insolvency  and  a  transfer  of  property  for  the  benefit  of  creditors. 
Id. ;  Brouwer  v.  Harbeck,  9  N.  Y.,  589;  Harris  v.  Thompson,  15  Barb.,  62-  Rob- 
inson v.  Bk.  of  Attica,  21  N.  Y.,  406<j  Dutcher  v.  I.  &  T.  Bk.,  59  id.,  5 ;  Matter  of 
Hurst,  7  Wend.,  239.  An  offer  by  a  corporation  to  allow  a  judgment  to  be  taken 
against  it,  is  an  unlawful  transfer  of  its  property  within  th&  meaning  of  this  sec- 
tion. Id.  Under  such  circumstances,  a  stockholder  or  director  can  not  enter  a 
judgment  against  the  company.  Id. 

This  section  does  not  render  void  payments  made  in  the  ordinary  and  usual 
course  of  business  by  a  corporation  insolvent  to  the  knowledge  of  its  officers,  to  a 
debtor  who  is  wholly  ignorant  of  its  financial  condition.  Dutcher  v.  I.  &  T.  Nat 
Bk.,  59  N.  Y.,  5. 

The  payment  of  a  debt  to  a  bonafide  creditor  is  prohibited  by  this  section, 
equally  with  a  general  transfer  of  property,  or  an  assignment  in  trust  for  creditors. 
Robinson  v.  Bank  of  Attica,  21  N.  Y.,  406. 

51 


STOCK  CORPORATION  LAW. 

A  transfer  is  in  contemplation  of  insolvency,  as  well  where  the  insolvency 
actually  exists  as  where  it  is  anticipated.  Id. 

This  section  makes  the  question  depend  upon  what  was  passing  in  the  minds  of 
the  officers  of  the  company  when  the  transfer  is  made.  Paulding  v.  Chrome 
Steel  Co.,  94  N.  Y.,  334.  Where  they  execute  a  mortgage  in  pursuance  of  a 
previous  contract,  by  which  the  company  is  bound,  either  in  law,  equity  or  other- 
wise, under  such  circumstances  that  it  can  not  have  a  choice,  the  condition  of  in- 
solvency becomes  of  no  moment,  for  it  was  not  in  contemplation,  or  in  their 
minds.  Id. 

The  transfer,  by  an  insolvent  bank,  of  drafts  for  over  $1,000  in  the  aggregate, 
is  prohibited,  though  no  one  draft  is  of  that  value.  Atchison  i».  Rochester  P.  Co,, 
114  N.  Y.,  168.  The  fraud  of  the  officers  gives  the  depositor  no  preference  over 
other  creditors,  unless  he  can  identify  the  property.  Id.  The  collection  of  the 
balance  from  such  depositor  by  the  receiver,  in  ignorance  of  such  unlawful  pre- 
ference, does  not  operate  to  release  from  liability  to  account  for  such  preference. 
Id.  The  transfer  is  illegal  if  made  without  consideration  and  not  in  the  usual 
course  of  business,  without  regard  to  the  intent  or  ignorance  of  the  transferrer. 
Id.  In  such  case,  the  question  of  the  bona  fides  is  not  one  of  the  jury.  Id. 

Directors  of  insolvent  corporation  can  not  effect  equality  of  distribution  by 
abuse  of  forms  of  law.  Nat.  B.  Bk.  v.  W.  M.  Co.,  59  Hun,  470. 

Sequestration  proceedings,  used  for  this  purpose,  constitute  transfer  in  con- 
templation of  insolvency.  Id. 

They  can  not,  by  such  means,  prevent  honest  creditor  from  obtaining  preference, 
to  which  his  diligence  entitles  him.  Id. 

Director  of  insolvent  corporation  can  not  secure  preference  over  other  ci«ditora 
by  attachment.  Throop  v.  H.  L.  Co.,  125  N.  Y.,  530. 

Trustee  and  stockholder  of  insolvent  corporation  can  not,  as  creditor,  attach  its 
property.  Throop  v.  Hatch  L.  Co.,  58  Hun,  149. 

Malfeasance  of  co-trustees  does  not  remove  disability.     Id. 

Attempt  by  creditor,  who  is  also  stockholder  and  director  of  corporation,  to 
obtain  preference  by  action  at  law,  with  co-operation  of  his  associates,  amounts  to 
unlawful  preference  by  way  of  assignment,  in  contemplation  of  insolvency.  King 
v.  Union  I.  Co.,  33  N.  Y.  St.  Rep.,  545. 

Where  there  was  no  actual  intent  to  defraud  creditors,  no  judgment  by  way  of 
punishment  should  be  given.  Id. 

Judgment  entered  on  offer  of  insolvent  corporation  is  void.  Braem  v.  Merchant*' 
Nat.  Bk.,  40  N.  Y.  St.  Rep.,  327. 

Insolvent  corporation  may  suffer  judgment  to  be  taken  by  default.  Varnum  v. 
Hart,  119  N.  Y.,  101. 

Failure  of  officer  to  disclose  service  of  summons  does  not  violate  statute.     Id. 

Judgments  against  insolvent  corporation  are  not  void,  unless  recovered  by  active 
procurement  of  officer  of  such  corporation.  Dixon  v.  Mayer,  35  N.  Y.  St. 
Rep.,  482. 

Conveyance  of  message  by  president  from  his  wife  to  attorney  to  commence 
suit,  does  not  establish  violation  of  statute.  Id. 

Bill  of  sale  given  by  manufacturing  corporation  in  contemplation  of  insolvency 
and  with  intent  to  create  preference,  is  void.  Keiley  v.  Mechanics'  &  T.  Bank,  89 
N.  Y.  St.  Rep.,  438. 

Insolvent  corporation  can  not  sell  out  its  property  in  order  to  commit  suicide, 
whether  in  good  or  bad  faith.  Cole  v.  M.  I.  Co.,  38  N.  Y.  St.  Rep.,  34. 

When  officer  of  insolvent  and  purchasing  corporations  are  same,  sale  should  not 
stand.  Id. 

Knowledge  of  officers  in  such  case  is  sufficient  to  put  defendant  upon  inquiry.  Id. 

Bondholders,  with  notice  of  creditor's  equity,  can  not  claim  any  lien  under  mort- 
gage as  against  creditor.  Id. 

What  is  proper  remedy  of  creditor  under  the  circumstances.     Id. 

No  notice  to  Attorney-General  need  be  given  of  application  for  appointment  of 
new  trustee  of  insolvent  insurance  company,  in  place  of  trustee  appointed  under 
act  of  1814.  Matter  of  Gay ;  Matter  of  Columbian  Ins.  Co.  (Sup.  Ct.,  1889),  21, 
848  ;  31  N.  Y.  St.  Rep.,  346. 

Purpose  of  act  of  1883,  denned.     I.l. 

Creditor  can  not  prove  both  original  debt  and  security  therefor,  against  insolvent 

corporation.     People  v.  E.  Remington  &Sons,  54  Hun,  480  ;  Varnum  v.  Har»,  6  N. 

Y.  Supp.,  846}  Brower  v.  Harbeck,  9  N  Y.,  589  ;  Kingsley  v.  Bank,  81  Hun,  329 

Does  not  prohibit  directors  from  paying  or  securing  a  debt  of  a  corporation. 

Gordon  v.  SmitlijraU-  Building  Co.,  109  App.  Div.  838. 

52 


STOCK  CORPORATION  LAW. 


§  49.  (Payment  by  stockholders  of  mortgage  debt  pending 
foreclosure.) 

Repealed  by  ch.  854  of  1901.     In  effect  April  16,  1901. 


§  50.  Application  to  court  to  order  issue  of  new  in  place  of 
lost  certificate  of  stock. — The  owner  of  a  lost  or  destroyed  certifi- 
cate of  stock,  if  the  corporation  shall  refuse  to  issue  a  new  certificate  in 
place  thereof,  may  apply  to  the  supreme  court,  at  any  special  term 
held  in  the  district  where  he  resides,  or  in  which  the  principal  business 
office  of  the  corporation  is  located,  for  an  order  requiring  the  corpora- 
tion to  show  cause  why  it  should  not  be  required  to  issue  a  new  certifi- 
cate in  place  of  the  one  lost  or  destroyed.  The  application  shall  be 
by  petition,  duly  verified  by  the  owner,  stating  the  name  of  the  corpo- 
ration, the  number  and  date  of  the  certificate,  if  known,  or  if  it  can  be 
ascertained  by  the  petitioner ;  the  number  of  shares  named  therein,  to 
whom  issued,  and  as  particular  a  statement  of  the  circumstances 
attending  such  loss  or  destruction  as  the  petitioner  can  give.  Upon  the 
presentation  of  the  petition  the  court  shall  make  an  order  requiring  the 
corporation  to  show  cause,  at  a  time  and  place  therein  mentioned,  why 
it  should  not  issue  a  new  certificate  of  stock  in  place  of  the  one  de- 
scribed in  the  petition.  A  copy  of  the  petition  and  order  shall  be 
served  on  the  president  or  other  head  of  the  corporation,  or  on  the  sec- 
retary or  treasurer  thereof,  personally,  at  least  ten  days  before  the  time 
for  showing  cause. 

Former  section  50  amended. 

See  section  1,  chap.  151  of  1873,  now  repealed. 

To  confer  upon  the  court  jurisdiction  to  make  an  order  in  a  proceeding  instituted 
under  this  section,  it  must  be  proved  that  the  petitioner  is  the  owner  of  the  shares, 
and  that  the  certificate  for  such  shares  has  been  lost  or  destroyed  and  can  not,  after 
due  diligence,  be  found.  Matter  of  Biglin  v.  Friendship  Ass'n,  46  Hnn,  223 ;  27 
W.  Dig.,  302.  See  Brisbane  v.  D.  L.  &  W.  R.  R.  Co.,  25  Hun,  438  ;  »ff*d  94  N. 
Y.,  204. 

A  corporation,  which  has  permitted  a  transfer  of  stock  owned  by  a^  stockholder 
upon  a  forged  power  of  attorney,  and  has  canceled  the  original  certificates,  may 
be  compelled  to  issue  new  certificates,  and  if  it  has  no  shares  which  it  can  issue,  to 
pay  the  value  thereof.  Pollock  v.  National  Bk.,  7  N.  Y.,  274. 

§  51.  Order  of  court  upon  such  application. — Upon  the  retuni 

53 


STOCK  CORPORATION  LAW. 

of  the  order,  with  proof  of  due  service  thereof,  the  court  shall,  in  a  summary 
manner,  and  in  such  mode  as  it  may  deem  advisable,  inquire  into  the  truth  of 
the  facts  stated  in  the  petition,  and  hear  the  proofs  and  allegations  of  the  parties 
in  regard  thereto,  and  if  satisfied  that  the  petitioner  is  the  lawful  owner  of  the 
number  of  shares,  or  any  part  thereof,  described  in  the  petition,  and  that  the 
certificate  therefor  has  been  lost  or  destroyed,  and  can  not  after  due  diligence 
be  found,  and  that  no  sufficient  cause  has  been  shown  why  a  new  certificate 
should  not  be  issued,  it  shall  make  an  order  requiring  the  corporation,  within 
such  time  as  shall  be  therein  designated,  to  issue  and  deliver  to  the  petitioner 
a  new  certificate  for  the  number  of  shares  specified  in  the  order,  upon  depositing 
such  security,  or  filing  a  bond  in  such  form  and  with  such  sureties  as  to  the  court 
shall  appear  sufficient  to  indemnify  any  person  other  than  the  petitioner  who 
shall  thereafter  be  found  to  be  the  lawful  owner  of  the  certificate  lost  or  destroyed; 
but  such  provision  requiring  security  to  be  deposited  or  bond  filed  is  to  be  con- 
strued as  excluding  an  application  made  by  a  domestic  municipal  corporation 
or  by  a  public  officer  in  behalf  of  such  corporation;  and  the  court  may  direct 
the  publication  of  such  notice,  either  before  or  after  making  such  order  as  it 
shall  deem  proper.  Any  person  claiming  any  rights  under  the  certificates 
alleged  to  have  been  lost  or  destroyed  shall  have  recourse  to  such  indemnity, 
but  in  any  application  under  the  provisions  of  this  act  in  which  a  domestic 
municipal  corporation  or  a  public  officer  in  behalf  of  such  corporation,  shall  be 
by  the  foregoing  provisions  of  this  section,  excused  from  depositing  security 
or  filing  a  bond,  such  municipal  porporation  shall  be  liable  for  all  damages  that 
may  be  sustained  by  any  person,  in  the  same  case  and  to  the  same  extent  as 
sureties  to  a  bond  or  undertaking  would  have  been,  if  such  a  bond  or  undertaking 
had  been  filed;  and  the  corporation  issuing  such  certificate  shall  be  discharged 
from  all  liability  to  such  person  upon  compliance  with  such  order;  and  obedience 
to  the  order  may  be  enforced  by  attachment  against  the  officer  or  officers  of  the 
corporation  «n  proof  of  his  or  their  refusal  to  comply  with  it. 

Am'd  by  chap.  35  of  L.  1905. 
Former  section  51   without  change. 
See  section  2,  chap.  151  of  1873,  now  repealed. 

Proof  must  be  taken  of  the  facts  alleged  in  the  petition.    Matter  of  Speir,  69 
App.  Div.   149.     Matter  of  Coats,  75  App.  Div.  469. 

§  52.  Financial  statement  to  stockholders. — Stockholders  own- 
ing five  per  centum  of  the  capital  stock  of  any  corporation  other  than  a 
monied  corporation,  not  exceeding  one  hundred  thousand  dollars,  or 
three  per  centum  where  it  exceeds  one  hundred  thousand  dollars,  may 
make  a  written  request  to  the  treasurer  or  chief  fiscal  officer  thereof, 
for  a  statement  of  its  affairs,  •  under  oath,  embracing  a  particular  ac- 
count of  all  its  assets  and  liabilities,  and  the  treasurer  shall  make  such 
statement  and  deliver  it  to  the  person  presenting  the  request  within 
thirty  days  thereafter,  and  keep  on  file  for  twelve  months  thereafter  a 
copy  of  such  statement,  which  shall  at  all  times  during  business  hours 
be  exhibited  to  any  stockholder  demanding  an  examination  thereof ; 
but  the  treasurer  or  such  chief  fiscal  officer  shall  not  be  required  to  de- 
liver more  than  one  such  statement  in  any  one  year.  The  supreme 
court,  or  any  justice  thereof,  may  upon  application,  for  good  cause 
shown,  extend  the  time  for  making  and  delivering  such  certificate.  For 
every  neglect  or  refusal  of  the  treasurer  or  other  chief  fiscal  officer 
thereof  to  comply  with  the  provisions  of  this  section  he  shall  forfeit  and 
pay  to  the  person  making  such  request  the  sum  of  fifty  dollars,  and  the 

54 


35    COBFCSATIOII  i. 
I 

further  sum  of  ten  dollars  for  every  twenty-four  hour* 
until  such  statement  shall  be  furnished. 

Former  section  52  amended. 

See  section  27,  chap.  40  of  1848,  now  repealed 

This  section  requires  only  a  detailed  account  of  the  assets  and  liabilities  of  to* 
company,  so  as  to  enable  the  stockholder  to  appreciate  the  value  of  the  shares  bl 
the  stock  held  by  him,  and  the  financial  standing  of  the  company.  French  v 
McMillan,  4o  Hun,  lob. 

Application  for  statement  of  assets  and  liabilities  must  be  by  stockholder  of 
record.  Pray  «.  Todd,  71  App.  Div.  391. 

Order  granting  examination  without  limitation  as  to  place  or  length  of  investi- 
gation held  invalid.  Matter  of  Coats,  73  App.  Div.  178. 

§  53.  Stock  books  of  foreign  corporations.— Every  foreign  stock  corpora- 
tiou  having  an  office  for  the  transaction  of  business  in  this  state,  except  moneyed 
and  railroad  corporations,  shall  keep  therein  a  book  to  be  known  as  a  stock  book 
containing  the  names,  alphabetically  arranged,  of  all  persons  who  are  stockholders 
of  the  corporation,  showing  their  places  of  residence,  the  number  of  shares  of 
stock  held  by  them  respectively,  the  time  when  they  respectively  became  the  own 
ers  thereof,  and  the  amount  paid  thereon.  Such  stock  book  shall  be  open  daily, 
during  business  hours,  for  the  inspection  of  its  stockholders  and  judgment  credi- 
tors, and  any  officer  of  the  state  authorized  by  law  to  investigate  the  affairs  of  any 
such  corporation.  If  any  such  foreign  stock  corporation  has  in  this  state  a  trans- 
fer agent,  whether  such  agent  shall  be  a  corporation  or  a  natural  person;  such 
stock  book  may  be  deposited  in  the  office  of  such  agent  and  shall  be  open  to  in- 
spection at  all  times  during  the  usual  hours  of  transacting  business,  to  any  stock- 
holder, judgment  creditor  or  officer  of  the  state  authorized  by  law  to  investigate 
the  affairs  of  such  corporation.  For  any  refusal  to  allow  such  book  to  be  inspec- 
ted, such  corporation  and  the  officer  or  agent  so  refusing  shall  each  forfeit  the 
sum  of  two  hundred  and  fifty  dollars  to  be  recovered  by  the  persou  to  whom  such 
refusal  was  made. 

[Am'd,  ch.  384  of  1897.] 

Former  section  56. 

Bee  chap.  165  of  1842,  now  repealed. 

The  transfer  agent  of  any  corporation  existing  beyond  the  jurisdiction  of  this 
•tate  is  required  at  all  reasonable  times  during1  the  usual  business  hours,  to 
exhibit  to  any  stockholder,  when  required,  the  transfer  book  of  such  corporation, 
and  also  a  list  of  the  stockholders  thereof,  if  in  his  power  to  do  so.  People  ex  rel. 
Del.  Mar.  v.  St.  Louis,  etc.,  Ry.  Co.,  19  Abb.  N.  C.,  1.  It  is  no  answer  to  such 
application  that  the  law  of  the  state,  where  the  corporation  was  created,  requires 
it  to  keep  in  such  state  a  stock  register  or  transfer-book,  if  it  appears  that  the 
officers  of  the  company  have  in  their  possession  in  this  state  a  book  containing 
entries  of  the  transfer  of  its  stock.  Id.  The  name,  by  which  it  is  called,  is 
immaterial,  if  it  contains  the  information  which  the  act  gives  the  stockholders  the 
right  to  obtain.  Id.  See  also,  Kennedy  -».  Chicago,  etc.,  R.  R.  Co.,  14  Abb.  N. 
C.,  326.  In  the  latter  case,  it  was  held  that  a  demand  for  the  exhibition  of  the 
stock  book  is  not  sufficient  as  a  demand  for  the  transfer  book. 

In  a  proceeding  for  a  mandamus  to  compel  a  foreign  corporation  and  its  officer* 
to  exhibit  the  stock-book  to  a  stockholder,  it  is  immaterial  whether  the  transfer  of 
the  stock  to  the  relator  was  merely  colorable  or  whether  any  consideration  was 
paid  therefor,  or  what  was  the  occasion  of  the  transfer.  People  ex  rel.  Harriman 
v.  Paton,  20  Abb.  N.  C.,  172. 

A  mandamus  to  compel  the  exhibition  of  the  transfer-books  should  be  directed 
to  th«  transfer  agents  only,  and  not  to  the  officers  of  a  foreign  corporation.  People 
BX  rel.  Hatch  v.  Lake  Shore,  etc.,  R.  R.  Co.,  11  Hun,  1. 

Liability  of  foreign  corporation  not  affected  by  fact  that  book  does  not 
contain  every  item  required.  Tyng  v.  Corporation  Trust  Co.,  104  App.  Div.  486. 

What  must  be  shown.  Hollister  v.  Deforest  W.  Tel.  Co.,  47  Misc.  674. 

§  54.  Liabilities  of  stockholders.— Every  holder  of  capital  stock  not 
fully  paid,  in  any  stock  corporation,  shall  be  personally  liable  to  its  creditors, 
to  an  amount  equal  to  the  amount  unpaid  on  the  stock  held  by  him  for  debts 
of  the  corporation  contracted  while  such  stock  was  held  by  him.  As  to  exist 
ing  corporations  the  liability  imposed  by  this  section  shall  be  in  lieu  of  the 
liability  imposed  upon  stockholders  of  any  existing  corporation,  under  any 
general  or  special  law.  (excepting  laws  relating  to  moneyed  corporations,  and 
corporations  and  associations  for  banking  purposes,  on  account  of  any  indebted- 
ne>*  hereafter  contracted  or  any  stock  hereafter  issued;  but  nothing  in  tlm 
section  contained  shall  create  or  increase  any  liability  of  stockholders  c 
any  existing  corporation  under  any  general  or  special  law. 


STOCK  CORPORATION  LAW. 

holders  of  every  stock  corporation  shall  jointly  and  severally  be  per- 
sonally liable  for  all  debts  due  and  owing  to  any  of  its  laborers,  servants 
or  employes  other  than  contractors,  for  services  performed  by  them 
for  such  corporation.  Before  such  laborer,  servant  or  employe  shall 
charge  such  stockholder  for  such  services,  he  shall  give  him  notice  in 
writing,  within  thirty  days  after  the  termination  of  such  services,  that 
he  intends  to  hold  him  liable,  and  shall  commence  an  action  therefor 
within  thirty  days  after  the  return  of  an  execution  unsatisfied  against 
the  corporation  upon  a  judgment  recovered  against  it  for  services.  No 
person  holding  stock  in  any  corporation  as  collateral  security,  or  as 
executor,  administrator,  guardian  or  trustee,  unless  he  shall  have  volun- 
tarily invested  the  trust  funds  in  such  stock,  shall  be  personally  subject 
to  liability  as  a  stockholder;  but  the  peison  pledging  such  stock  shall  be 
considered  the  holder  thereof  and  shall  be  liable  as  stockholder,  and  the 
estates  and  funds  in  the  hands  of  such  executor,  administrator,  guard- 
ian or  trustee  shall  be  liable  in  the  like  manner  and  to  the  same  extent 
as  the  testator  or  intestate,  or  the  ward  or  person  interested  in  such 
trust  fund  would  have  been,  if  he  had  been  living  and  competent  to 
act  and  held  the  same  stock  in  his  own  name,  unless  it  appears  that 
such  executor,  administrator,  guardian  or  trustee  voluntarily  invested 
the  trust  funds  in  such  stocks,  in  which  case  he  shall  be  personally 
liable  as  a  stockholder. 

Amended  by  ch.  854  of  1901.    In  effect  April  16,  1901. 

Former  section  57. 

Bee  section  5,  title  3,  chap.  18,  part  1,  R.  8.;  section  10,  11,  16,  18,  chap.  40  of 
1848 ;  section  10,  chap.  282  of  1854,  and  sections  23,  37,  chap.  611  of  1875,  now 
repealed. 

The  object  of  this  section  in  requiring  a  certificate  to  be  filed  is  to  inform  the 
public  ao  that  they  can  transact  business  with  the  corporation,  upon  the  assur- 
ance that  the  capital  stock  has  all  been  paid  in,  or  that  the  stockholders  are 
severally  liable  for  an  amount  equal  to  the  stock  held  by  them  respectively.  Nat. 
T.  W.  Co.  ».  Gilfillan,  124  N.  Y.,  302. 

A  statute  which  imposes  upon  the  stockholders  of  a  corporation  a  personal 
liability  for  the  corporate  debts  must  be  strictly  construed.  Chase  v.  Lord,  77  N. 
Y.f  1.  It  can  not  be  extended  beyond  its  literal  terms.  Id.  In  such  case,  the 
legal  presumption  is  that  all  statutory  conditions  have  been  complied  with.  Id. 
The  creditor,  before  he  can  charge  a  stockholder,  must  establish  a  non-com- 
pliance with  the  provisions  of  the  statute.  Id.;  Bruce  •».  Driggs,  25  How.,  71. 

Where  a  certificate  of  stock  is  filled  out  and  signed  by  the  president  and  secretary 
of  a  corporation,  the  person  named  therein  is  a  stockholder,  though  the  certificate 
is  not  detached  from  the  stock-book,  and  the  company's  seal  is  not  affixed  thereto. 
HaJsteadfl.  Dodge,  51  Supr.,  169. 

The  tiling  of  the  proper  certificate  in  the  office  of  the  county  clerk,  under  th« 
general  incorporation  act,  is  sufficient  to  constitute  those  making  and  filing  it,  a 
corporation,  as  to  one  dealing-  with  them  as  such.  Raesbeck  v.  Destenreicher,  18 
Alb.  L.  J.,  211.  A  filing  of  the  required  duplicate  in  the  office  of  the  Secretary  of 
State  is  not  necessary.  Id. 

It  is  enough,  in  ordinary  actions,  to  prove  the  existence  of  de  facio  coi-poration. 
Benesch  v.  J.  H.  M.  L.  Ins.  Co.,  16  Daly,  394. 

Where  the  subscription  is  void  under  section  41,  the  subscriber  does  not  become 
a  stockholder  even  as  to  creditors,  and  can  not  be  held  individually  liable  for  the 
debts  of  the  company  under  this  section.  Perry  v.  Hoadley,  19  Abb.  N.  C.,  76. 

Persons  signing  the  articles  of  association  of  a  manufacturing  company  are  stock- 
holders. Strong  v.  Wheaton,  38  Barb.,  616.  When  the  holding  [of  stock  is  once 
established,  it  must  be  presumed  to  continue,  until  its  surrender  or  assignment  in 
shown.  Id. 

Where  the  bonds  of  a  corporation  have  been  issued  by  it  gratuitously  to  a 
stockholder,  but  no  portion  of  its  property  or  assets  has  been  applied  in  payment 
thereof,  the  stockholder  is  not  liable  to  account  to  creditors  for  the  proceeds  of  the 
«ale  of  said  bonds  by  him.  Christensen  v.  Eno,  106  N.  Y  .  97. 

.V 


STOCK  CORPORATION  LAW. 

The  principle  upon  which  persons  subscribing  or  engaging  to  take  stock  an 
held  liable,  was  considered  in  Seymour  v.  Sturgess,  26  N.  Y.,  134. 

A  person,  who  haa  signed  and  acknowledged  the  articles  of  association  of  a 
corporation  created  under  this  act,  and  was  named  a  trustee  therein,  can  r.ot 
deny,  in  an  action  under  this  section,  that  he  was,  at  the  time  of  signing  the  ar- 
ticles, a  stockholder  thereof.  Herries  v.  Wesley,  13  Hun,  492.  In  such  case,  he 
will  be  presumed  to  continue  to  be  one  until  the  contrary  is  established.  Id. :  Strong 
v.  Wheaton,  38  Barb.,  617. 

The  purchase  of  stock  in  a  corporation  makes  the  buyer  a  stockholder.  Peoole  v 
North  R.  8.  R.  Co.,  121  N.  Y.,  582. 

The  acceptance  and  holding  of  a  certificate  of  the  stock  subjects  the  holder  to 
th«  liabilities  of  a  stockholder.  Van  Cott  v.  Van  Brunt,  2  Abb.  N.  C.,  283. 

Person  can  not  be  made  stockholder  of  corporation,  without  his  knowledge  or 
consent.  Glen  v.  Garth,  39  N.  Y.  St.  Rep.,  473. 

He  is  not  estopped  as  against  creditor  of  corporation  from  denying  that  he  is 
shareholder.  Id. 

Corporative  stock,  issued  to  executor  in  representative  capacity,  is  vested  in  him. 
Matter  of  Santa  E.  S.  M.  Co.,  21  N.  Y.  St.  Rep.,  89. 

Subject  to  the  limitations  and  qualifications  of  this  and  the  next  sections,  the 
liability  of  a  stockholder,  before  the  capital  is  paid  in,  or  certificate  filed,  stands 
upon  a  similar  footing  to  that  of  partners  in  any  company  or  association  not  incor- 
porated. King  v-  Duncan,  38  Hun,  461  ;  Allen  v.  Sewall,  2  Wend.,  327 ;  Moss  v. 
Oakley,  2  Hill,  265  ;  Corning  v.  McCullough,  1  N.  Y.,  47  ;  Harger  v.  McCullough. 
2  Denio,  119  ;  McKinney  i>.  Phillips,  24  Barb.,  87. 

The  liability  under  this  section  is  qualified  only  by  the  following  section.  King 
t>.  Duncan,  38  Hun,  461. 

Each  stockholder's  liability  under  this  section  is  limited  to  the  amount  of  his 
ptock.  Wiles  v.  Suydam,  64  N.  Y.,  173. 

Trustees  are  excluded  from  the  scope,  as  well  as  the  policy,  which  this  section 
nas  intended  to  promote.  McDowall  v.  Sheehan,  41  N.  Y.  St.  Rep.,  415.  They  are 
not  entitled  to  the  protection  which  the  law  intends  to  secure  to  creditors  of  the 
corporation.  Id.  The  directors  of  a  moribund  corporation  can  not  constitute 
themselves  creditors  for  salaries  or  wages  and  thus  impose  liabilities  upon  confiding 
and  innocent  stockholders.  Id. 

The  requirement  as  to  the  recording  of  the  certificate  is  directory  merely. 
Veeder  v.  Mudgett,  95  N.  Y.,295.  The  duty  imposed  upon  the  stockholders  la 
performed  upon  the  making  and  delivery  of  the  certificate  to  the  county  clerk  for 
record.  Id.  They  are  not  liable  for  an  omission  to  record,  which  is  wholly  the 
fault  of  the  clerk.  Id. 

An  acknowledged,  but  unsworn,  certificate  of  the  increase  of  capital  stock  is  not 
a  compliance  with,  nor  does  it  terminate  the  liability  of  the  owners  of  the  new 
shares  for  the  debts  of  the  corporation  under  this  section.  Hardman  v.  Sage,  124 
N.  Y.,  25  ;  Brown  v.  Smith,  13  Hun,  408;  aflPd  80  N.  Y.,  650;  Veeder  t?.  Mudgett, 
»5  N.  Y.,  295. 

The  certificate  must  be  sworn  to,  and  a  mere  acknowledgment  is  not  a  sufficient 
compliance  with  the  provisions  of  this  section.  Brown  v.  Smith,  13  Hun,  408; 
aff'd  80  N.  Y.,  650. 

The  certificate,  under  this  section,  is  not  conclusive,  and  creditors  may  show  non- 
payment in  fact  of  the  full  capital.  Barre  Nat.  Bk.  v.  Hingham  Mfg.  Co.,  127 
Mass.,  563.  The  conclusiveness  of  such  certificate  was  not  in  any  manner  inti- 
mated or  sustained  by  the  case  of  Bonnell  v.  Griswold,  80  N.  Y.,  128.  See  Veeder 
v.  Mudgett,  95  N.  Y.,  295  ;  Schenck  v.  Andrews,  46  N.  Y.,  589;  Boynton  v.  Same, 
63  id.,  93;  Same  v.  Hatch,  47  id.,  225  ;  13  Hun,  411 ;  80  N.  Y.,  650  ;  Wheeler  v. 
Millar,  90  id.,  358.  The  question  whether  the  certificate  is  even  presumptive 
evidence  of  payment  was  raised,  but  not  decided,  in  Veeder  v.  Mudgett,  ante. 

The  stockholder  remains  liable  till  the  whole  amount  of  the  capital  stock  is  paid 
in  and  the  required  certificate  filed,  but  only  to  a  creditor  against  whose  claim  the 
statute  haa  not  run.  Knox  v.  Baldwin,  80  N.  Y.,  610. 

Debt  contracted  before  capital  stock  has  been  paid  in,  either  in  cash  or  in  equiva- 
lent property,  is  alone  sufficient  to  make  stockholder  liable.  N.  T.  W.  Co.  v. 
Gilfillan,  124  N.  Y.,  302. 

Stockholders  are  individually  liable  where  property  procured  in  exchange  for 
stock  is  purchased  at  over-valuation,  not  through  error  of  judgment,  but  in  bad 
faith  and  to  evade  statute.  Id. 

57 


STOCK  CORPORATION  LAW. 

The  cause  of  action  under  this  section  consists  of  a  debt  and  the  liability  created 
by  statute  against  stockholders  when  the  stock  has  not  been  paid  in  and  a  certifi- 
cate of  that  fact  recorded.  Wiles  v.  Suydam,  64  N.  Y.,  173.  This  section,  in 
effect,  withdraws  the  protection  of  the  corporation  from  the  stockholders,  and 
regards  them  liable  to  the  extent  of  the  amount  of  their  stock  as  co-partners.  Id.j 
Corning  »).  McCullough,  1  N.  Y.,  47. 

Under  this  section  two  things  are  requisite  to  end  the  stockholder's  liability. 
The  whole  amount  of  capital  stock  must  be  paid  in,  and  the  certificate  of  that  fact 
made  and  recorded.  Veeder  v.  Mudgett,  95  N.  Y.,  295 ;  Plase  v.  Housman,  17  N. 
Y.  St.  Rep.,  671  ;  Chase  v.  Lord,  77  N.  Y.,  1 ;  Aspinwall  v.  Sacchi,  57  id.,  331. 

The  liability,  as  created  by  this  section,  is  limited  by  two  things,  both  of  which, 
to  exempt  the  stockholder,  must  be  fully  complied  with.  First.  The  whole  amount 
of  the  capital  stock,  fixed  and  limited  by  the  company,  shall  have  been  paid  in. 
Second.  A  certificate  of  such  payment  shall  have  been  made,  filed  and  recorded,  M 
prescribed  in  this  section.  Brown  v.  Smith,  13  Hun,  408 ;  aff'd  80  N.  Y.,  650. 

Such  liability  is  not  confined  to  the  original  capital  stock.  Veeder  v.  Mudgett, 
95  N.  Y.,  295.  On  an  increase  of  the  capital,  it  attaches  to  such  increased 
capital.  Id. 

The  liability,  which  was  ended  when  the  original  capital  was  paid  in,  in  full, 
»nd  a  certificate  made  and  recorded,  is  not  revived  by  an  increase  of  the  capital. 
Veeder  v.  Mudgett,  95  N.  Y.,  295.  In  such  case,  the  holders  of  the  original  stock 
are  not  liable  thereon  because  of  a  failure  to  pay  in  the  increased  capital.  Id. 
The  liability  rests  solely  upon  the  holders  of  the  increased  stock,  and  is  limited  by 
the  par  value  of  such  stock.  Id. 

In  case  of  an  attempt  to  increase  the  capital,  the  stockholders,  who  have  voted 
for  the  increase,  accepted  their  share  of  the  additional  stock  and  received  thereon, 
are  estopped,  as  against  creditors,  from  questioning  the  validity  of  the  increase. 
Veeder  v.  Mudgett,  95  N.  Y.,  295. 

The  omission  to  file  a  certificate  as  to  the  payment  of  the  increase  of  capital,  sub- 
jects not  the  holders  of  the  captial  stock,  which  has  been  fully  paid  up,  and  as  to 
which  there  is  no  statutory  default,  but  the  holders  of  the  new  issue  of  capital 
stock  to  liability  for  corporate  debts.  Griffith  v.  Green,  129  N.  Y.,  517 ;  42  N. 
Y.  St.  Rep.,  101 ;  Veeder  v.  Mudgett,  95  N.  Y.,  295.  In  such  case,  the  burden  ia 
on  the  creditor  to  show  that  the  stock  of  the  defendant  stockholder  constituted  part 
of  the  increased  capital  stock.  Griffith  v.  Green,  ante. 

In  an  action  against  a  stockholder  for  failure  to  file  a  certificate  of  payment  of 
increased  stock,  the  burden  is  upon  the  creditor  to  show  that  defendant's  stock 
was  increased  stock.  Griffith  v.  Green,  37  N.  Y.  St.  Rep.,  705. 

Burden  of  proving  non-payment  of  subscription  is  on  plaintiff.  Wellington  «. 
C.  C.  &  I.  Co.,  52  Hun,  408. 

Payment  by  stockholder  of  stock  to  company  relieves  him  from  liability.     Id. 

Creditors  must  sue  in  equity  all  similar  (stockholders.     Id. 

Settlement  of  parties  to  contract,  bars  right  of  action  by  third  party  on  promise 
therein  to  assume  and  pay  his  claim.  Id. 

A  remedy  given  by  the  statutes  of  another  state  to  creditors  of  a  corporation 
against  its  stockholders  is  not  available  here.  Christensen  v.  Eno,  106  N.  Y.,  97 ; 
Lowry  v.  Inman,  46  id.,  119. 

Common-law  action  will  lie  in  this  state  by  judgment  creditor  of  a  corporation, 
organized  in  another  state,  against  stockholders  to  enforce  statutory  liability 
created  by  laws  of  that  state.  Savings  Ass'n  •».  O'Brien,  51  Hun,  45. 

An  action  may  be  maintained  on  the  stockholder's  liability  in  a  state  other  than 
that  in  which  the  corporation  was  formed.  Griffith  v.  Mangam,  42  Supr.,  369. 

What  must  be  alleged  to  constitute  a  cause  of  action  under  this  section. 
Cuykendall  v.  Corning,  88  N.  Y.,  129,  137. 

What  constitutes  a  debt  within  the  meaning  of  the  former  acts,  has  had  many 
and  contradictory  decisions  ;  but  when  a  debt  is  contracted,  has  been  adjudicated 
in  only  a  very  few  cases. 

To  create  a  liability  under  this  section,  a  valid  debt  must  be  contracted  under 
the  circumstances  therein  mentioned  and  before  the  capital  stock  has  been  paid  in, 
either  in  money  or  in  property  honestly  regarded  as  a  fair  equivalent  to  cash. 
National  Tube  W.  Co.  v.  Gilfillan,  124  N.  Y.,  302. 

A  stockholder  can  not  be  held  liable  for  rent  due  under  a  lease  for  more  than  a 
year  which  did  not  fall  due  within  a  year  of  the  making  of  a  lease.  Goff  v.  Whit- 
ney, 9  City  Ct.,  966. 

58 


STOCK  CORPORATION  LAW. 

Under  a  corporate  lease  for  five  years,  the  rent  payable  within  two  years  from 
the  time  of  executing  the  lease  and  delivering  the  premises,  is  recoverable  in  an 
action  under  section  57  of  this  chapter  ;  but  the  rent  accruing  beyond  that  time  is 
not  a  liability  that  can  be  enforced  against  the  individual  stockholders.  Mclntyre 
D.  Strong-,  63  How.,  43. 

The  liability  covers  all  debts  and  contracts  made  by  the  company,  iiTespective 
of  the  circumstances  under  which  they  were  made.  National  T.  W.  Co.  t>.  Gilfil- 
lan,  124  N.  T.,  302.  That  credit  was  imprudently  given  by  the  creditor,  or  that 
he  gave  credit  upon  the  supposition  that  the  corporate  property  was  sufficient  to 
pay  the  debts,  creates  no  exemption  from  liability  under  this  section.  Id. 

This  liability  is  governed  by  the  original  indebtedness,  and  can  not  be  extended 
or  renewed  by  any  extension  or  renewal  which  the  creditor  may  make  with  the 
corporation.  Hardman  v.  Sage,  47  Hun,  230  ;  Parrott  v.  Colby,  6  Hun,  55  ;  aflPd 
71  N.  Y.,  597  ;  Jagger  Iron  Co.  v.  Walker,  76  id.,  521  ;  Parrott  v.  Sawyer,  87 
id.,  622. 

The  liability  of  a  stockholder  can  not  be  revived  or  extended  by  any  renewal  or 
extension  of  the  indebtedness  which  the  creditors  may  make  with  the  corporation 
Parrott  v.  Colby,  6  Hun,  55  ;  aft" d  71  N.  Y.,  597 ;  Jagger  Iron  Co.  v.  Walker,  76 
id.,  521. 

An  action  can  be  brought  only  against  such  as  were  stockholders,  when  the  debt 
was  contracted,  and  not  those  who  became  so  afterwards.  Moss  v.  Oakley,  9 
Hill,  265. 

A  stockholder  is  not  liable,  under  this  section,  for  corporate  debts  contracted  be- 
fore he  became  such.  Tracy  v.  Yates,  18  Barb.,  152  ;  Phillips  v.  Therasson,  11 
Hun,  141. 

A  trustee  may  recover  for  services  rendered  to  the  corporation.  McDowall  u. 
Sheehan,  36  N.  Y.  St.  Rep.,  104. 

The  provision  of  this  section  applies  to  holders  of  stock  issued  in  payment  for 
property  purchased  by  the  corporation.  Boynton  v.  Andrews,  63  N.  Y.,  93.  In 
such  case,  the  question  is,  whether  the  purchase  was  made  in  good  faith,  or  at  a 
high  valuation  with  a  fraudulent  intent  to  evade  the  provisions  of  the  statute.  Id. 
An  honest  over-valuation  will  not  of  itself  subject  the  owner  of  the  stock  to  a  per- 
sonal liability.  Id. 

Under  the  former  law,  a  stockholder,  to  whom  stock  was  issued  in  payment  of 
property,  was  not,  in  absence  of  fraud  in  its  valuation,  liable  to  the  creditors  of 
the  company  because  of  a  failure  on  the  part  of  the  proper  officers  to  file  the 
required  certificate.  Brown  v.  Smith,  13  Hun,  408;  80  N.  Y.,  650;  Boynton  t>. 
Andrews,  63  id.,  93 ;  Same  v.  Hatch,  47  id.,  225  ;  Schenck  v.  Andrews,  57  id.,  133; 
Same  v.  Same,  46  id.,  579. 

Under  the  former  law,  in  Schenck  v.  Andrews,  46  N.  Y.,  589,  it  was  held  that 
the  whole  capital  stock  could  be  paid  for  in  property,  and  when  so  paid  for,  the 
owner  thereof  was  not  liable  to  the  creditors  of  the  company  under  section  10  of 
the  act  of  1848.  But  this  case  was  limited  and  distinguished  in  same  case,  57 
N.  Y.,  133. 

It  was  held,  in  Boynton  v.  Hatch,  47  N.  Y.,  225,  that,  when  the  capital  stock  was 
fully  paid  in  either  money  or  property  and  the  certificate  filed,  the  stockholders 
are  released  from  personal  liability.  The  transaction  was  impeachable  for  fraud. 
Id.  A  fraudulent  and  evasive  issue  of  stock  for  such  purpose  rendered  the  holder 
liable.  Id.  The  agreement  of  the  company  to  pay  more  than  the  value  of  the 
property  was  no  shield  from  personal  liability  under  section  10  of  the  act  of 
1843.  Id. 

A  legal  fraud  is  established  by  proof  that  the  stock  of  the  company,  not  fully 
paid,  has  been  issued  as  fully  paid  stock.  National  T.  W.  Co.  v.  Gilfillan,  124  N. 
Y.,  302.  It  is  not  necessary  to  show  otherwise  an  actual  fraudulent  intent.  Id. 

A  fraud  is  consummated  by  the  issue  of  stock,  as  paid  up  stock,  when  in  fact  it 
has  not  been  paid  for  either  in  money  or  in  property  of  equal  value.  Thurston  t>. 
Duffy,  38  Hun.,  327  ;  Douglass  v.  Ireland,  73  N.  Y.,  100.  A  deliberate  design  to 
perpetrate  a  fraud  on  the  law  by  an  evasion  of  its  provision  and  secure  personal 
immunity  by  assumed  compliance  with  the  statute,  which  is  false  and  hollow  in 
fact  and  exists  on  paper  only,  renders  the  stockholders  personally  liable  under 
this  section.  Id. 

Where  stock  is  issued  for  property  purchased  for  the  company,  and  the  transac- 
tion is  fraudulent  in  law,  the  holders  of  such  stock  are  liable  for  the  unpaid  portion 
thereof.  Gamble  v.  Queens  Co.  W.  Co.,  52  Hun,  166 ;  25  Abb.  N.  C.,  410. 

A  provision  that  part  of  the  stock  so  issued  was  to  be  sold  for  less  than  par  and 

59 


STOCK  CORPORATION  LAW. 

the  proceeds  given  to  the  company,  was  held,  in  Draper  v.  Beadle,  16  W.  Dig.,  475, 
not  to  be  conclusive  evidence  of  an  over-valuation,  but  that  the  question  was  still 
one  of  fact  for  the  jury.  Id.  See  Lake  Sup.  Iron  Co.  v.  Drexel,  90  N.  Y.,  87  ;  15 
W.  Dig.,  341. 

Where  the  stock  of  a  corporation  is  issued  in  form  for  property,  it  is  to  b« 
regarded  as  full-paid  stock,  unless  there  are,  in  said  issue,  a  fraudulent  over-valu- 
ation and  an  intent  to  evade  the  statute.  Draper  v.  Beadle,  16  W.  Dig.,  475. 

In  an  action  to  charge  a  holder  of  stock  issued  for  property  purchased  by  the 
company  on  the  ground  of  a  fraudulent  over-valuation  thereof,  proof  of  an  offer 
for  part  of  it,  made  to  and  refused  by  the  company,  if  in  good  faith,  bears  with 
force,  and  is  admissible,  upon  the  question  aa  to  whether  or  not  there  had  been  a 
fraudulent  over- valuation  of  the  land  by  the  trustees.  Thurber  v.  Thompson,  21 
Hun,  472. 

Where  the  evidence  ia  not  conclusive,  the  question  whether  the  trustees,  in 
exchanging-  the  stock  of  the  company  for  the  property  taken,  were  endeavoring  to 
evade  and  circumvent  the  law,  should  be  submitted  to  the  jury.  Lake  Sup.  Iron 
Co.  v.  Drexel,  90  N.  Y.,  87 ;  Douglass  v.  Ireland,  73  Id.,  100  ;  Brockway  v.  Same, 
6i  How.,  372. 

It  must  be  shown  that  the  company,  with  the  concurrence  of  the  stockholder, 
shall  have  acted  in  bad  faith  in  issuing  the  amount  of  stock  delivered  for  the  prop- 
erty purchased.  Nat.  T.  W.Co.  v.  Gilfillan,  46  Hun,  248;  Douglass  v.  Ireland,  73 
N.  Y.,  100  ;  Thurston  v.  Duffy,  38  Hun,  327 ;  Lake  Sup.  Iron  Co.  v.  Drexel,  90  N. 
Y.,  67  ;  Blake  v.  Griswold,  103  N.  Y.,  429. 

To  charge  the  holder  of  stock,  issued  upon  and  for  the  purchase  of  property,  it 
must  be  shown  that  the  purchase  was  in  bad  faith  and  to  evade  the  statute. 
Douglas  v.  Ireland,  73  N.  Y.,  100.  No  other  fraudulent  intent  need  be  alleged  or 
proved  than  that  the  stock  exceeded  in  amount  the  value  of  such  property,  and 
that  the  trustees  so  issued  it  deliberately  and  with  knowledge  of  the  real  value  of 
the  property.  Id.  The  value  of  the  property  must  be  determined,  and  evidence 
thereof  is  competent.  Id. 

The  trustees  are  the  judges  both  aa  to  the  necessity  for,  and  the  value  of  the 
property.  Schenck  v.  Andrews,  57  N.  Y.,  133.  Good  faith  and  the  exercise  of  a 
proper  discretion  and  honest  judgment  meet  the  requirement.  Id. 

A  mere  mistake  or  error  of  judgment,  by  the  trustees,  either  as  to  the  necessity 
of  the  purchase  or  as  to  the  value  of  the  property  so  purchased,  if  made  in  good 
faith  and  not  in  evasion  of  the  provision  of  the  statute,  will  not  subject  a  holder  of 
stock  issued  in  payment  for  the  property  purchased  to  liability  under  this  section. 
Schenck  v.  Andrews,  57  N.  Y.,  133;  Gamble  v.  Queens  Co.  W.  Co  ,  52  Hun,  166; 
25  Abb.  N.  C.,  410. 

Where  the  capital  stock  has  been  issued  for  property  purchased  for  the  corpora- 
tion without  any  actual  fraudulent  intent,  subscribers  who  became  such  subse- 
quent to  such  transaction,  and  did  not  participate  in  it,  can  not  sue  each  other  in 
an  action  at  law.  Dodge  v.  Havemeyer,  4  N.  Y.  St.  Rep.,  5G1.  The  remedy,  in 
sxich  caee,  is  by  a  suit  for  an  accounting  to  fix  the  pro  rat  a  liability  of  the  stock- 
holders, and  not  by  a  suit  to  recover  the  whole  debt  from  an  individual  stock- 
holder. Id. ;  Mathez  v.  Neidig,  72  N.  Y.,  100;  McMaster  v.  Davidson,  29  Hun, 
542  ;  Bailey  v.  Bancker,  3  Hill,  188;  Richardson  i>.  Abendroth,  43  Barb.,  162. 

Fraud  in  such  cases  is  an  important  element,  and  must  be  affirmatively  proved. 
Dodge  v.  Havemeyer,  4  N.  Y.  St.  Rep.,  561  ;  Brown  v.  Smith,  13  Hun,  40  •> ;  affM 
80  N.  Y.,  650  ;  Sohenck  v.  Andrews,  57  id.,  133;  Boynton  v.  Same,  63  id.,  93  ; 
Lake  Superior  Co.  v.  Drexel,  90  id.,  93  ;  Douglass  v.  Ireland,  73  id.,  100. 

The  holder  of  capital  stock  issued  for  property  acquired  by  the  corporation,  is 
not  exempted  from  liability  under  this  section,  where  such  stock  exceeded  in 
amount  the  value  of  the  property  in  exchange  for  which  it  was  issued,  and  the 
trustees  have  deliberately,  and  with  knowledge  of  its  real  value,  over-valued  it 
and  paid  in  stock  for  it  an  amount  which  they  knew  was  in  excess  of  its  actual 
value.  Douglas  v.  Ireland,  73  N.  Y.,  100  ;  Boynton  v.  Hatch,  47  id.,  225  ;  Same 
t).  Andrews,  63  id.,  93  ;  Schenck  v.  Same,  57  id.,  133  ;  Lake  Superior  Co.  v. 
Drexel,  90  id.,  87 ;  Blake  v.  Griswold,  103  id.,  429  ;  Brown  v.  Smith,  13  Hun,  408  ; 
affd  SON.  Y.,  630;  National  Tube  Co.  r.  Oilfillan,  124  N.  Y.,  302  ;  Dodge  t). 
Havemeyer,  4  N.  Y.  St.  Rep.,  561  ;  Goodrich  v.  Dorman,  38  id.,  198. 

A  purchase  of  property  from  one  of  the  trustees  for  the  benefit  of  the  corpora- 
tion may  be  made  under  this  section,  if  made  in  good  faith,  for  a  proper  considera- 
tion, and  without  any  attempt  to  evade  the  statute.  Knowles  v.  Duffy,  40  Hun, 
486.  This  rule  applies  though  the  entire  capital  stock  is  paid  therefor.  Id. 

60 


STOCK  CORPORATION  LAW. 

Where  property,  procured  in  exchange  for  stock,  is  purchased  at  an  over-valua- 
tion, not  through  au  error  of  judgment,  but  in  bad  faith  and  to  evade  the  statute, 
the  stockholders  are  individually  liable.  Nat.  T.  W.  Co.  v.  Gilfillan,  124  N.  Y.,  302. 

The  statute  liability  constitutes  a  fund  which  belongs  to  the  creditors  to  secure 
the  payment  of  their  debts.  Mathez  •».  No. dig,  72  N.  Y.,  100.  It  belongs  to  all 
the  creditoi-s,  as  well  those  who  are,  as  those  who  are  not,  stockholders.  Id. 

The  stockholders,  under  this  and  following  sections,  are  liable  in  an  original  and 
primary  sense,  like  partners  or  members  of  an  unincorporated  association,  and 
their  liability  is  not  created  by  the  statute   of  incorporation.     Corninjr  r 
Cullough,  1  N.  Y.,  47. 

A  stockholder,  who  is  liable  for  the  debts  of  the  company  to  the  amount  of  the 
stock  held  by  him,  do»s  not  stand  in  the  light  of  a  guarantor  or  surety,  but  is  a 
principal  debtor.  Moss  v.  McCullough,  7  Barb.,  27.-». 

The  property  of  every  corporation  is  to  be  regarded  as  a  trust  fund  for  the  pay- 
ment of  its  debts.  Hastings  v.  Drew,  76  N.  Y.,  9.  The  creditors  have  a  lien 
thereon  and  may  follow  it  into  the  hands  of  the  director  and  stockholders.  Id. 
"Where  such  property  has  been  divided  among  the  stockholders,  a  judgment 
creditor,  after  returns  of  an  execution  against  the  corporation  unsatisfied,  can 
maintain  an  action ;  in  the  nature  of  a  creditor's  bill  against  a  stockholder,  to 
reach  whatever  was  so  received  by  him.  Id. 

A  creditor  of  a  corporation,  the  stockholders  of  which  are  liable  for  its  debts, 
may  bring  a  suit  in  equity  against  all  stockholders  liable  to  him,  and  in  favor  of 
all  creditors  jointly  interested  with  him  who  choose  to  come  in  and  share  in  the 
benefits  and  expenses  of  his  suit  for  the  establishment  of  a  fund,  for  the  adjust- 
ment of  all  liabilities  to  contribute  thereto,  and  of  all  claims  thereon.  Pfohl «. 
Simpson,  74  N.  Y.,  137 ;  Mathez  -p.  Neidig,  72  id.,  100 ;  Griffith  v.  Mangam,  73 
id.,  611 ;  Weeks  v.  Love,  50  id.,  568.  Such  action  will  not  give  a  right  or  impose 
a  liability  which  does  not  exist  otherwise.  Id. 

This  personal  liability  may  be  enforced  in  an  equitable  action  against  all  the 
stockholders.  Weeks  v.  Love,  50  N.  Y.,  568  ;  Briggs  v.  Penneman,  8  Cow.,  387 ; 
Mann  v.  Pentz,  3  N.  Y.,  415 ;  Osgood  v.  Laytin,  5  Abb.,  N.  S,,  1. 

The  creditor  has  his  election  to  bring  an  action  at  law  against  a  stockholder,  or 
to  bring  an  action  in  equity,  and  have  an  accounting  between  all  the  stockholders 
and  all  the  creditors,  wherein  the  rights  of  each  can  be  ascertained  and  protected. 
Mathez  v.  Neidig,  72  N.  Y.,  100  ;  Bank  "of  Poughkeepsie  v.  Ibbotson,  24  Wend., 
73 ;  Briggs  v.  Pennington,  8  Cow.,  392  ;  Garrison  v.  Howe',  17  N.  Y.,  458 ;  Matter 
of  Empire  City  Bk.,  18  N.  Y.,  227. 

A  n  action  at  law  can  be  maintained  against  one  of  several  stockholders  to  recover 
a  debt  owing  by  the  corporation.  Weeks  v.  Love,  CO  N.  Y.,  568  ;  Bank  of  Pough- 
keepsie v.  Ibbotson,  24  Wend.,  472  ;  Garrison  v.  Howe,  17  N.  Y.,  458.  Such  action 
can  be  maintained  by  a  single  creditor.  Id.  This  section  is  not  confined  to  the 
case  of  a  suit  against  a  stockholder  by  a  sole  creditor  of  the  corporation.  Id.  One 
of  several  creditors  is  entitled  to  maintain  the  action.  Id.  It  is  not  a  joint  right 
in  the  creditors  generally.  Id. 

A  creditor  can,  after  exhausting  his  remedy  at  law,  maintain  an  action  against  a 
stockholder,  to  reach  his  unpaid  subscription,  and  be  subrogated  to  the  right  of  the 
company,  without  joining  other  stockholders  or  creditors.  Wheeler  v.  Millar,  90 
N.  Y.,  353  ;  Hatch  <o.  Dana,  101  U.  S.,  205  ;  Bartlett  v.  Drew,  57  N.  Y.,  587. 

If  the  creditor  can  not  find  »  responsible  stockholder,  who  is  not,  at  the  same 
time,  a  creditor  to  the  amount  of  his  stock,  he  must  proceed  for  an  account,  if  he 
ascertains  that  such  a  proceeding  will  result  in  recovering  his  debt.  Garrison  t>. 
Howe,  17  N.  Y.,  458. 

A  creditor  may  proceed  by  suit,  in  the  nature  of  a  common  law  action,  against  a 
single  stockholder.  Garrison  v.  Howe,  17  N.  Y.,  458 ;  Bank  of  Poughkeepsie  v. 
lobotson,  24  Wend.,  473.  He  is  not  compelled  to  bring  an  equitable  action  for  an 
accounting,  but  may  do  so.  Id. 

It  is  not  necessary  to  make  all  the  stockholders  defendants  to  an  action  by  a 
creditor  of  a  corporation  under  this  section.  Abbott  v.  Aspinwall,  26  Barb.,  20& 
Each  creditor  has  a  remedy  against  each  stockholder.  Id.  Such  remedy  is  no« 
against  such  stockholders  only  as  have  not  paid  for  their  stock.  Id.  The  stock 
held,  not  the  amount  of  stock  unpaid  for,  gives  the  measure  of  the  recovery.  Id. 

Creditors  may  enforce  contribution  from  the  stockholders,  if  the  trustees  negr- 
<ect  to  do  so.  Briggs  v.  Penniman,  8  Cow..  387. 

Where  a  stockholder  is  sued  to  enforce  his  individual  liability  in  a  case  wher* 
an  account  and  the  enforcing  of  all  liabilities  will  relieve  him  from  the  whole  or  a 

61 


STOCK  CORPORATION  LAW. 

part  of  the  debt  claimed,  he  may  himself  resort  to  a  suit  for  such  account,  and  for 
distribution.  Garrison  v.  Howe,  17  N.  Y.,  458 ;  Bank  of  Poughkeepsie  v.  Ibbot- 
eon,  24  Wend.,  473. 

An  assignee  of  a  judgment  against  a  corporation  may  use  the  name  of  the 
plaintiff  in  the  judgment  hi  an  action  to  enforce  the  liability  of  a  stockholder.  Har- 
ger  v.  McCullough,  2  Denio,  119. 

The  stockholders  and  the  amount  of  stock  held  by  them  may  be  established  by 
proof  of  payments  on  account  of  stock,  and  the  taking  of  the  usual  stock  ceitin- 
cates.  Dorris  v.  French,  4  Hun,  292.  But  these  facts  may  be  proved  by  the  or- 
dinary mode  of  subscribing  the  agreement  to  unite  in  the  formation  of  the  com- 
pany, and  to  take  a  number  of  shares  of  stock  therein  specified.  Id. 

The  stock  subscription  paper,  signed  by  a  person,  is  relevant  and  competent  evi- 
dence upon  the  question  whether  he  was  a  stockholder.  Partridge  v.  Badger,  25 
Barb.,  146.  Testimony  of  witnesses,  who  were  present  at  an  election  of  directors, 
is  competent  as  to  who  were  elected.  Id.  The  books  of  the  company  are  not  the 
sole  evidence  upon  this  point.  Id.  Proof  as  to  who  acted  as  such,  is  proper.  Id. 

A  judgment  recovered  against  a  corporation  within  a  year  from  the  time  when 
the  debt  had  become  due  and  payable,  was  held,  in  Hall  v.  Siegel,  7  Lans.,  206, 
not  to  be  evidence  of  a  stockholder's  liability  in  an  action  brought  against  him  af- 
ter the  year  had  expired. 

Judgment  against  the  corporation  is  evidence  against  the  stockholder,  when 
gued  on  his  individual  liability.  Hill  v.  Spencer,  34  Supr.,  304. 

In  an  action  against  stockholders  of  a  corporation,  brought  by  a  creditor,  to 
charge  them  individually  with  a  corporate  debt,  under  a  statute  giving  the 
creditor  a  right  to  sue  one  or  all  of  the  stockholders  together  with  the  corporation, 
a  judgment  obtained  against  the  company  is  sufficient  evidence  of  its  indebted- 
ness to  charge  the  stockholders,  unless  shown  to  have  been  obtained  through 
collusion  or  fraud.  Conklin  v.  Furman,  57  Barb.,  484 ;  affd  48  N.  Y.,  527,  on 
another  point. 

It  was  held,  in  Slee  v.  Bloom,  20  Johns.,  CG9,  that  a  stockholder,  when  sued  alone 
for  the  recovery  of  the  same  debt,  was  concluded  by  the  judgment  against  the 
company.  See  Moss  v.  Oakley,  2  Hill,  265 ;  Moss  v.  McCullough,  7  Barb..  279. 
But  the  court  held,  in  Moss  v.  McCullough,  5  Hill,  131,  that  a  judgment  against 
the  company  was  not,  as  against  a  stockholder,  when  sued  separately  for  the  same 
debt,  even  prima  facie  evidence  of  the  debt  sued  upon.  Strong  v.  Wheaton,  38 
Barb.,  616  ;  Jackson  v.  Griswold,  4  Hill,  522. 

In  Belmont  v.  Coleman,  21  N.  Y.,  96,  and  McMahon  v.  Macy,  51  id.,  155,  the 
question  as  to  the  effect  of  a  judgment  against  the  company,  in  an  action  against 
a  stockholder  under  this  section,  was  considered,  but  the  case  was  disposed  of 
npon  another  point. 

In  an  action  against  a  stockholder  to  enforce  the  payment  of  his  unpaid  sub- 
scription by  a  creditor,  a  judgment  recovered  against  the  company  is  competent 
evidence  of  the  plaintiff's  status  as  a  creditor  of  the  company  and  of  the  amount 
due  him.  Stephens  v.  Fox,  83  N.  Y.,  313 ;  afFg  17  Hun,  438  ;  Hastings  v.  Drew, 
76  N.  Y.,  9;  Mills  v.  Stewart,  41  id.,  389;  Christensen  v.  Eno,  21  W.  Dig.,  202. 
The  ground  of  such  holding  is  that  the  stockholder  owed  to  the  corporation,  and 
to  any  one  who  succeeded  to  its  rights,  the  amount  he  had  agreed  to  pay,  and 
which  he  had  not  paid. 

In  an  action  under  this  section,  the  judgment  against  the  corporation  furnishes 
no  evidence  whatever  of  the  indebtedness,  and  the  creditor  must  prove,  entirely 
outside  of  the  judgment,  the  liability  of  the  corporation.  Berridge  v.  Abernethy, 
24  W.  Dig.,  513  ;  Kinciad  v.  Dwindle,  59  N.  Y.,  551 ;  Wheeler  v.  Miller,  24  Hun, 
641. 

The  only  purpose  for  which  such  judgment  can  be  used  as  evidence  is,  after  the 
existence  of  the  debt  has  been  established,  to  prove  that  it  has  been  prosecuted  to 
judgment  against  the  company  as  one  step  requisite  to  establish  the  stockholder's 
Lability  under  this  section,  in  performance  of  the  condition  precedent  prescribed 
by  the  neat  section.  Lawyer  v.  Bosebrook,  48  Hun.  453  ;  Kincaid  v.  Dwinelle,  69 
N.  Y.,  548. 

In  an  action  brought  to  reach  property  of  the  corporation,  which  was  subject  to 
the  lien  of  the  judgment  of  the  creditor,  and  to  apply  the  same  to  its  payment  and 
satisfaction,  the  judgment  is  at  least  regarded  as  prima  facie  evidence.  Hasting* 
e.  Drew,  76  N.  Y..  0. 

It  was  held,  in  McDowall  v.  Sheehan,  36  N.  Y.  St.  Rep.,  104,  that  it  was  proper 

62 


STOCK  CORPORATION  LAW. 

and  necessary,  in  an  action  under  this  section,  to  prove  the  judgment  against  the 
company.     The  purpose  or  effect  of  such  proof  was  not  stated. 

An  action  will  not  lie  by  one  stockholder,  against  fellow  stockholder*,  of  a  cor- 
poration, to  enforce  a  personal  liability  for  a  debt  of  the  company.  Richardson  «. 
Abendroth,  43  Barb.,  162. 

A  subscriber  to  the  capital  stock  of  a  corporation,  when  the  right  to  alter  or  re- 
peal its  charter  is  reserved  to  the  legislature,  is  not  discharged  from  hie  subscrip- 
tion by  a  subsequent  amendment  to  the  charter,  but  will  be  regarded  as  having 
consented  to  the  change.  Union  H.  Co.  u.  Hersee,  79  N.  Y.,  454. 

That  a  stockholder  \vas  induced  to  accept  his  stock  by  reason  of  an  untruthful 
statement,  will  not  avail  against  an  innocent  creditor  of  the  corporation  McDow- 
all  i).  Sheehau,  36  N.  Y.  St.  Rep.,  104. 

It  must  be  shown  that  the  defendant  was  a  stockholder  when  the  indebtedness  of 
the  corporation  accrued.  Tucker  v.  Oilman,  121  N.  Y.,  189. 

No  secret  transfer  will  avail  to  release  the  stockholder  from  his  obligations,  or 
deprive  the  creditors  of  the  corporation  of  the  right  to  look>>  him  as  the  responsible 
party  liable  for  the  debts  of  the  corporation.     Shellingtoii  v.  Howland.  53  N    Y 
871. 

The  stockholders,  under  this  section,  are  principal  debtors  and  not  sureties. 
Harger  v.  McCullough,  2  Denio,  119.  An  extension  of  the  time  of  payment  given 
to  the  corporation  by  a  creditor  does  not  discharge  a  stockholder,  who  haa  not 
assented  to  such  extension,  and  who  is  subsequently  sued  on  account  of  his  indi- 
vidual liability.  Id. 

By  extending  time  for  payment  of  debt  due  from  manufacturing  corporation,  by 
one  or  several  contracts,  creditor  loses  his  claim  upon  shareholders  under  this  sec- 
tion. Hardman  v.  Sage,  124  N.  Y.,  25. 

When  stockholders  are  relieved  from  liability  by  transfer.  Tucker  v.  Oilman, 
121  N.  Y.,  189. 

Transfer,  made  before  indebtedness  accrued,  is  defense.     Id. 

Payment  by  stockholder  to  another  creditor  of  full  liability,  though  subsequent 
to  action,  is  defense.  Richards  v.  Brice,  15  Daly,  144. 

A  dissolution  of  the   corporation  for  not  paying  in  the  capital  stock,  within  the 

S Described  time,  does  not  at  all  affect  the  stockholder's  liability  under  this  section, 
ing  v.  Duncan,  38  Hun,  461.  It  is  expressly  provided  by  section  6,  chap.  567  of 
1890,  that  the  dissolution  for  any  cause  shall  not  take  away  or  impair  any  remedy 
against  the  company,  its  stockholders  or  officers,  for  any  liabilities  incurred  pre- 
vious to  its  dissolution. 

A  corporation  can  only  be  dissolved  by  a  formal  judgment.  Hollingshead  v. 
Woodward,  35  Hun,  410. 

When  the  liability  of  a  stockholder  is  released  by  a  cancellation  of  his  stock. 
Hollingshead  v.  Woodward,  35  Hun,  410. 

The  failure  of  the  clerk  to  do  his  duty  by  making  a  record  of  the  certificate  can 
not  prejudice  stockholders  or  trustees  who  have  done  all  the  law  requires  of  them, 
or  that  they  have  the  power  to  do.  Sutherland  v.  Olcott,  29  Hun,  161 ;  Boynton 
t>.  Hatch,  47  N.  Y.,  225. 

The  filing  of  the  certificate  relieves  the  stockholders  from  all  personal  liability. 
Sutherland  v.  Olcott,  29  Hun,  161. 

One  must  be  a  stockholder  in  fact,  in  order  to  be  liable,  and  not  merely  a  sub- 
Bcriber  whose  stock  has  been  forfeited,  and  who  no  longer  holds  it.  Mills  v.  Stewart, 
41  N.  Y.,  384. 

An  original  corporator  and  signer  of  the  articles  of  incorporation,  who  sub- 
scribed but  did  not  pay  for  certain  number  of  shares  of  stock,  was  a  trustee  and 
secretary  of  the  corporation  and  actively  engaged  in  its  management,  and  appeared 
upon  the  corporate  books  as  a  stockholder,  is  a  stockholder  within  the  meaning  of 
this  section.  Wheeler  v.  Millar,  90  N.  Y.,  353.  Neither  the  issuing  of  a  certificate, 
nor  payment,  is  essential  to  make  him  such.  Id.  The  certificate  is  only  evidence 
of  ownership.  Id.  This  can  be  interred  from  other  facts.  Id. 

A  person,  who  gives  to  a  corporation  his  promissory  note,  payable  at  a  future 
time,  for  a  specified  number  of  shares  of  its  capital  stock,  and  takes  a  receipt 
from  an  officer  of  the  company,  expressing  that  such  note,  when  paid,  will  be  in 
full  for  such  shares,  does  not  become  a  stockholder  until  the  note  matures  and  is 
paid,  and  a  stock  certificate  is  issued.  Tracy  v.  Yates.  IS  Barb.,  152. 

Where  the  corporation  formed,  or  attempted  to  be  formed,  is  different  in  its  pur- 
poses from  that  in  which  a  subscriber  agreed  to  take  stock,  the  condition  of  hi* 


STOCK  CORPORATION  LAW. 

,/ 

contract  is  not  performed,  and  he  is  not  liable  in  an  action  to  recover  the  amount 
of  his  subscription.     Dorris  v.  Sweeney,  60  N.  Y.,  463. 

The  legal  and  effectual  formation  of  a  corporation  is  a  condition  precedent  to 
a  subscriber's  obligation  to  pay  for  stock.  Dorris  v.  Sweeney,  60  N.  Y.,  463. 

Irregularities  subsequent  to  organization  of  corporation  furnish  no  defense  to 
corporation  or  its  directors  or  stockholders.  Demarest  v.  Flack,  16  Daly,  337. 

A  defect  in  the  proceedings  to  organize  a  corporation  is  no  defense  to  a  stock- 
holder, sued  under  this  section,  who  has  participated  in  its  acts  of  user  as  a  cor- 
poration de  facto,  and  appeared  as  a  stockholder  upon  its  books  when  the  debt 
for  which  he  is  sued  was  contracted.  Eaton  v.  Aspinwall,  19  N.  Y.,  119. 

The  burden,  under  this  section,  is  on  the  creditor  to  show  that  the  capital  stock 
of  the  company  has  not  been  paid  in.  Bruce  V.  Driggs,  25  How.,  71 ;  or  that  the 
certificate  of  payment  in  full  has  not  been  filed. 

Subsequent  recovery  of  judgment  against  the  company  on  notes  given  for  ser- 
vices rendered  prior  to  the  filing  of  the  certificate  estops  the  creditor  from  resort- 
ing to  the  original  consideration,  in  order  to  charge  the  stockholders  with  the  pay- 
ment of  the  debt.  Sutherland  v.  Olcott,  29  Hun,  161. 

Though  a  person  is  not  a  stockholder  at  the  time  the  contract  is  made,  he  is 
liable  for  the  installments  falling  due  thereunder  after  he  became,  and  while  he 
continues  to  be  a  stockholder.  McMaster  v.  Davidson,  29  Hun,  542. 

A  stockholder  may  set  up  and  rely  upon  the  defense  that  the  stock  held  and 
owned  by  him  was  issued  in  payment  for  property,  purchased  by  the  trustees  and 
necessary  for  the  business,  and  that  it  was  full  paid  stock,  not  liable  to  any  further 
calls  or  payments.  Lewis  v.  Ryder,  13  Abb.,  1.  It  is  very  doubtful  whether  this 
is  now  the  law.  Stock  issued  for  money  and  property  is  placed  on  the  same  foot- 
ing by  section  42  of  this  act,  and  no  preference  is  shown  to  holders  of  the  latter 
kind  under  section  40. 

An  action  at  law,  under  this  section,  can  not  be  maintained  against  a  stockholder, 
who  is  also  a  creditor  to  an  amount  equal  to  his  stock.  Mathez  v.  Neidig,  72 
N.  Y.,  100. 

It  was  held,  in  Chambers  v.  Lewis,  28  N.  Y.,  454,  that  a  creditor,  in  setting  up 
in  his  answer  by  way  of  counter-claim,  the  liability  of  the  plaintiff  as  a  stockholder, 
under  a  similar  statute,  must  aver  that  the  plaintiff  held  an  amount  of  stock  in  the 
company  equal  to  the  amount  of  the  debt  of  the  defendant,  for  which  the  plaintiff 
is  sought  to  be  held  personally  liable. 

In  order  to  enable  a  defendant  stockholder  to  interpose  the  defense,  that  he  is  a 
creditor  of  the  corporation,  he  need  not  bring  himself  within  the  provisions  of  the 
following  section,  (58).  That  section  has  no  application  to  such  case.  Mathez  v. 
Neidig,  72  N.  Y.,  100. 

A  loan  by  a  stockholder  to  the  corporation  to  an  amount  equal  to  his  stock,  con- 
stitutes a  defense  in  an  action  brought  against  him  under  this  section.  Agate  v. 
Sands,  73  N.  Y.,  620.  The  fact  that  security  was  taken  for  the  loan  is  immaterial. 
Id.;  Wheeler  v.  Millar,  90  N.  Y.,  853.  See  also  Christensen  v.  Colby,  43  Hun,  362. 

To  make  such  defense,  the  stockholder  must  be  really  a  creditor  of  the  company. 
Wheeler  v.  Millar,  90  N.  Y.,  353.  He  is  not  in  reality  a  creditor,  if  he  owes  on  his 
unpaid  subscription  as  much  or  more  than  enough  to  balance  and  extinguish  his 
demand  against  the  company.  Id.  It  matters  not  that  his  debt  has  not  been 
actually  applied  on  the  subscription ;  nor  that  it  has  not  been  pleaded  ;  nor  that 
his  liability  upon  his  subscription  can  not  be  asserted  by  the  creditor  in  such 
action.  Id. 

In  an  action  under  this  section,  it  is  a  defense,  that  the  stockholder  is  also  a 
creditor  of  the  company  to  an  amount  exceeding  the  amount  of  stock  held  by  him. 
Richards  v.  Croker,  10  Abb.  N.  C.,  73. 

In  <u  action  under  this  act,  it  is  a  sufficient  defense  that  the  stockholder  sued  is 
himself  a  creditor  of  tlic  co?  pr,ny  to  nn  amount  equaling  his  stock.  Richards  v. 
Kinsley,  27  \7.  P'j.,  372  :  Brings  y.  Pcnniman,  8  Cow.,  387  ;  Wheeler  v.  Mil- 
lar, 90  N.  Y.,  35C;  Grjrison  y.  Howe,  17  id.,  458 ;  Mathez  v.  Neidig,  72  id.,  100. 

Payment  of  his  full  liability  under  this  section  by  a  stockholder  to  another 
creditor,  though  after  the  present  action  was  brought,  is  a  good  defense.  Rich- 
ards y.  Brice,  20  N.  Y.  St.  Rep.,  289. 

A  stockholder,  \vhen  judgment  has  passed  against  him,  and  his  personal  lia- 
bility is  fixed  for  the  debts  of  the  corporation  to  an  amount  equal  to  the  stock  held 
by  him,  or  when  he  has  paid  debts  of  the  corporation  to  that  amount  is  relieved 
from  farther  liability.  Weeks  t>.  Love.  50  N.  Y.,  568. 

64 


trrocx  G  iiii'ox.vrioN  L\w 


That  the  judgment  againsUhe  corporation  includes  in-tallments  which  became 
due  more  than  two  years  before  the  action  was  brought  against  the  company,  ia 
no  defense  to  the  balance  of  the  claim  in  an  action  under  this  section.  McMaster 
D.  Davidson,  29  Hun,  542. 

The  stockholder  sued  may  have  paid  in  full  for  his  stock,  but  this  does  not  re- 
lieve him,  if  others  are  in  default.  Wheeler  v.  Millar,  90  N.  Y.,  35S. 

A  stockholder  may  be  absolutely  discharged  from  all  liability  under  this  sec- 
tion, by  payme  it,   on  legal  compulsion,  to   any  creditor  or  creditors  for  whose 
debts  he  is  liable,  if  such  payment  equals  the  amount  of  his  stock.     Math- 
Nfidig,  72  N.  Y.,  100.     To  entitle  him  to  interpose  such  discharge  as  an  ab~ 
bar  to   a   claim  by  other  creditors,  either  at  law  or  in  equity,  he  must  show  that 
the  payment  was  made  to  a  creditor  or  creditors  for  whoee  debts  he  was  liable 
under  this  section.     Id.     Probably  the  same  effect  would  result  from  a  voluntary 
payment.     Id. 

A  stockholder  may  defeat  an  action  brought  to  enforce  his  individval  liability 
for  its  debts  incurred  before  the  capital  stock  is  paid  up,  by  showing  that  he  has 
already  paid,  on  account  of  the  corporate  debts,  a  sum  equal  to  the  amount  of  his 
stock.  Garrison  v.  Howe,  17  N.  Y.,  458  ;  Bank  of  Poughkeepsie  v.  Ibbotson,  24 
Wend.,  473. 

A  trustee  can  not  buy  up  the  outstanding  debts  of  the  corporation  for  his  own 
benefit,  knowing  it  to  be  insolvent,  with  an  intention  to  get  an  advantage  over 
other  creditors,  and  ho!d  the  purchased  debts  for  their  full  amount.  Bulkley  v. 
Whitcomb,  121  N.  Y.,  107.  In  such  case,  he  has  no  claim  to  offset,  in  an  action 
under  this  section,  beyond  the  amount  actually  paid.  Id. 

Not  only  the  liability  imposed  upon  stockholders  by  the  statute,  but  equitable 
liabilities,  which  may  be  invoked  in  behalf  of  a  creditor,  may  be  set  off  in  an 
action  under  this  section.  Christensen  v.  Colby,  43  Hun,  362. 

It  is  essential  to  the  maintenance  of  the  defense  of  an  equitable  offset  by  the 
stockholder  in  an  action  under  this  section  that  he  and  the  suing  creditors  stand 
upon  an  equality.  Bulkley  v.  Whitcomb,  49  Hun,  290.  This  does  not  appeal-  by 
simply  showing  that  he  has  become  possessed  of  a  judgment  against  the  company. 
Id.  Where  he  buys  such  a  claim,  and  neither  puts  anything  into  the  treasury  nor 
relieves  the  corporation  from  any  liability,  he  will  not  be  permitted  to  offset  his 
demand  upon  the  company  against  a  creditor's  demand  upon  him  as  a  stock- 
holder. Id. 

A  demand,  which  came  to  the  stockholder  by  assignment  after  the  company  had 
passed  into  the  hands  of  a  receiver,  can  not  be  so  intei-posed  against  a  creditor. 
Brings  v.  Corn  well,  9  Daly,  436. 

A  receiver  of  a  corporation,  organized  under  this  act,  is  not  vested  with  the 
right  of  action  given  by  this  section  to  corporate  creditors  against  the  stock- 
holders. Farnsworth  n.  Wood,  91  N.  Y.,  308. 

A  recovery  by  a  receiver  appointed  by  the  supreme  court  as  the  successor  of 
the  statutory  receivers  or  trustees,  in  an  action  to  enforce  the  liability  of  the 
stockholders,  is  a  bar  to  an  action  by  a  creditor.  Cuykendall  v.  Douglas,  19 
Hun,  577;  Walker  n.  Grain,  17  Barb..  119;  Story  v.  Furman,  25  N.  Y.,  222. 

The  liability  of  the  stockholder  under  this  section  does  not  exist  in  favor  of  the 
corporation.  Farnsworth  v.  Wood,  91  N.  Y.,  308.  Nor  for  the  benefit  of  all  its 
creditors.  Id.  It  was  created  only  in  favor  of  such  creditors  as  are  within  the 
prescribed  conditions,  and  is  to  be  enforced  by  these  in  their  own  right  and  for 
their  own  special  benefit.  Id.;  Tucker  v.  Gilman,  45  Hnn,  193. 

A  receiver  of  a  corporation  is  not  vested  with  the  right  of  action  given  by  this 
section  to  corporate  creditors  against  the  stockholders.  Farnsworth  v.  Wood,  91 
N.  Y.,  80S.  ThU  liability  exists  only  in  favor  of  such  creditors  as  are  within  the 
prescribed  conditions,  and  is  to  be  enforced  by  them  in  their  own  right  and  for 
their  own  especial  benefit.  Id. 

Such  action  is  barred  by  the  statute  of  limitations  after  the  expiration  of  six 
years  from  the  time  the  liability  was  incurred.  Knox  v.  Baldwin,  80  N.  Y.,  610. 

The  period  of  six  years  is  the  only  limitation  provided  for  suits  of  this  descrip- 
tion. Corning  v.  McCullough,  1  N.  Y.,  47. 

An  action  under  this  section  must  be  brought  before  the  expiration  of  six  year 
from  the  termination  of  the  two  years  allowed  for  the  paying  up  of  the  capital 
stock,  or  it  will  be  barred  by  the  statute  of  limitations.     Phillips  v.  Therasson,  11 
Hun,  141  ;  Conklin  v.  Furman,  48  N.  Y..  527. 

An  action  under  this  section  can  be  brought  before  the  expiration  of  two  years 
within  which  the  stock  must  be  fully  paid  in  or  the  charter  forfeited.  King  « 

65 


STOCK  CORPORATION  LAW. 

Duncan,  38  Hun,  461.  The  requirements  of  the  following  section  must  be  first 
nfct.  Id.  The  case  of  Phillips  v.  Therasson,  11  Hun,  141,  has  not  given  a  con- 
trary construction  to  the  statute.  Id. 

An  action  under  this  section  is  barred  by  the  statute  of  limitations  after  the 
expiration  of  six  years  from  the  time  the  liability  was  incurred.  Knox  v.  Baldwin, 
80  N.  Y.,  610.  It  was  not  determined  in  this  case  whether  the  cause  of  action 
against  the  stockholder  accrued  at  the  expiration  f.f  the  two  years  within  which 
the  whole  capital  stock  was  to  be  paid  in  under  this  section,  or  upon  the  recovery 
of  judgment,  or  after  judgment  and  execution,  under  section  58  of  this  chapter. 

The  statute  of  limitations  does  not  begin  to  run  in  favor  of  a  stockholder  until 
after  the  return  of  execution  against  the  corporation.  Handy  v.  Draper,  89  N.  Y., 
334  ;  Rocky  M.  Nat.  Bk.  v.  Bliss,  id.,  338. 

The  moment  a  cause  of  action  accrues  against  the  company,  it  accrues,  under 
this  section,  against  each  stockholder  liable.  Conklint).  Furman,  57  Barb.,  484} 
aff'd  48  N.  Y.,  527.  At  this  time  the  statute  of  limitations  begins  to  run  against 
the  stockholders.  Id.  The  action,  reported  in  48  N.  Y.,  527,  arose  under  section 
44,  chap.  210  of  1847,  whereby  provision  is  made  that  a  joint  action  may  be  prose- 
cuted against  the  company  and  any  one  or  more  stockholders  liable  to  contribute 
to  the  payment  of  its  debts.  A  similar  provision  is  found  in  section  7,  chap.  567  of 
1890,  applicable  to  full  liability  corporations.  In  such  case,  it  may  be  that  an  ac- 
tion under  this  section  must  be  brought  before  the  expiration  of  six  years  from  the 
accruing  of  the  debt  against  the  company.  In  the  case  of  a  limited  liability  cor- 
poration, the  rule  of  limitation  enunciated  in  Phillips  v.  Therasson,  11  Hun,  141, 
may  govern. 

Action  against  stockholders  for  non-filing  of  certificates  of  payment  of  stock  may 
be  revived  against  the  personal  representatives.  Cochran  v.  Weichers,  25  N.  Y. 
St.  Rep.,  571. 

No  stockholder,  in  such  action,  can  be  cast  in  judgment  for  more  than  an 
amount  equal  to  the  sum  of  the  stock  owned  by  him  individually,  in  addition  to  hi* 
liability  to  pay  in  full  the  stock  subscribed  for  or  bought  by  him.  Pfohl  v.  Simp- 
son, 74  N.  Y.,  137.  He  will  not  be  held  for  the  debt  of  a  creditor  which  was  not 
created  while  he  was  a  stockholder,  nor  will  any  creditor  lose  the  benefit  of  th« 
liability  of  a  stockholder,  who  was  such  when  his  debt  was  created.  Id. 

Stockholder's  liability  is  limited  to  the  amount  of  his  stock  with  interest  from  th« 
time  of  the  commencement  of  the  action.  Handy  v.  Draper,  89  N.  Y.,  334. 

The  allowance  of  interest  in  such  action  from  the  date  of  the  recovery  of  judg- 
ment against  the  corporation  is  error.  Handy  v.  Draper,  89  N.  Y.,  334. 

Interest  upon  the  amount  of  debt,  when  the  recovery  is  limited  to  the  amount  of 
the  stock,  can  be  allowed  from  the  date  of  the  commencement  of  the  action.  Bur/ 
t>.  Wilcox,  22  N.  Y.,  557 ;  Handy  v.  Draper,  89  id.,  334 ;  Shellington  v.  Howland, 
53  id.,  372.  But  these  cases  do  not  determine  the  rule  as  to  interest,  where  tit* 
debt  is  less  than  the  stockholder's  liability,  and  the  allowance  of  interest  does  not 
swell  the  recovery  beyond  that  limit. 

Where  the  entire  principle  and  interest  of  the  debt  do  not  exceed  the  limit  of  lia- 
bility, the  allowance  of  interest  from  the  maturity  of  the  debt  is  proper.  "Wheeler 
t).  Millar,  90  N.  Y.,  353. 

The  stockholder  is  liable  for  interest  upon  an  amount  equal  to  his  stock,  from  th« 
commencement  of  a  suit  against  him,  to  enforce  his  individual  responsibility.  BUIT 
«.  Wilcox,  22  N.  Y.,  551. 

In  an  action  under  this  section,  an  allegation  "that  as  plaintiff  is  informed  and 
verily  believes,  only  a  small  portion  of  said  stock  has  been  paid  off,"  is  a  sufficienl 
averment  that  the  capital  stock  of  the  corporation  had  not  been  paid  in  in  full.  Wood, 
ard  D.  Holland  M.  Co.,  39  N.  Y.  St.  Rep.,  411. 

The  claimant,  to  hold  a  stockholder  liable  for  his  services,  must  come  strictly 
within  the  denomination  of  a  "  laborer,  servant  or  employee,  other  than  con- 
tractor," of  the  corporation.  Harris  v.  Norvell,  1  Abb.  N.  C.,  127. 

In  the  enactment  of  such  provisions  as  are  embodied  in  the  second  clause  ot 
this  section,  it  has  been  the  policy  of  the  legislature  to  protect  those  only  who  are 
the  least  abje  to  protect  themselves,  and  who  earn  their  living  by  manual  labor 
for  a  small  compensation.  Gurney  v.  A.  &  Q.  W.  Ry.  Co.,  58  N.  Y.,  358 ;  Stryker 
t).  Caasidy,  76  id.,  53. 

Under  chap.  611  of  1875,  stockholders  were  not  under  any  special  liability  to 
laborers,  servants  or  employees  for  services  performed  for  th«  corporation. 
Richards  v.  Beach,  19  Abb.  N.  C.,  84. 

66 


STOCK  CORPORATION  LAW. 

Laborers  or  servants,  within  the  meaning  of  this  section,  are  persons  who,  in 
common  parlance,  and  according1  to  the  general  understanding  of  men,  fall  under 
that  appellation,  in  enumerating  the  different  classes  of  persons  employed  by  a 
corporation.  Dean  v.  De  Wolf,  16  Hun,  186;  affd  83  N.  Y.,  626. 

An  assistant,  who  performs  all  the  duties  of  the  superintendent  in  his  absence, 
and  receives  a  stated  salary,  is  not  a  laborer  or  servant  within  the  meaning  of  this 
section.  Dean  v.  De  Wolf,  16  Hun,  186 ;  afTd  82  N.  Y.,  626. 

The  performance  of  some  manual  labor,  merely  incident  to  his  position  of  general 
superintendent  of  the  company,  does  not  bring  a  person  within  the  provisions  of 
of  this  section.  Krauser  v.  Ruckel,  17  Hun,  463 ;  Ericsson  v.  Brown,  38 
Barb.,  390. 

Under  the  act  of  1848,  the  term  "servant,"  was  understood  to  relate  and  apply 
only  to  a  person  rendering  services  of  a  subordinate,  but  not  necessarily  of  a 
menial  character  to  an  employer,  varying  in  its  nature  according  to  the  business 
or  occupation  in  which  it  was  rendered,  and  not  to  extend  to  and  include  every 
employee  and  party  who  does  work  for  another.  Hill  v.  Spencer,  61  N.  Y.,  274. 
It  was  associated  with  "  laborers  "  and  "  apprentices,"  thus  indicating  that  it  was 
intended  to  apply  to  a  pei-son  employed  to  devote  his  time  and  render  bis  service 
in  the  performance  of  work,  similar  in  its  general  character  to  that  done  by  thoen 
employees.  Id.  The  corresponding  section  of  the  new  act  (57)  employs  the  word 
in  a  different  context,  and  connects  it  with  "  laborers  or  employees,  other  than 
contractors." 

A  bookkeeper  was  held,  in  Sherman  v.  Herbert,  2  City  Ct.,  314,  not  to  be  a 
"  laborer"  within  the  section  of  the  former  act  making  stockholders  personally 
liable  for  the  wages  of  laborers. 

Bookkeeper  and  general  clerk  is  employee.  Brown  v.  A.  B.  C.  Fence  Co.,  02 
Hun,  151. 

Bookkeeper  is  servant  within  this  section.  Chapman  v.  Chumar,  26  N.  Y.  St. 
Rep.,  473. 

The  term  "  salary,"  is  not  ordinarily  employed  to  services  performed  by  a 
"servant  "  in  the  general  and  usual  understanding  and  meaning  of  the  relation  of 
8n  employee^to  an  exployer.  Hill  v.  Spencer,  61  N.  Y.,  274. 

One  employed  to  take  charge  of  and  control  its  property  and  manage  its  financial 
jffairs  in  another  country,  in  all  respects  as  the  company  itself  could  do,  is  not  a 
»rvant  within  the  meaning  of  the  provisions  of  this  section.  Hill  v.  Spencer,  61 
N.  Y.,  274;  Aikin  v.  Wasson,  24  id.,  482  ;  Coffin  v.  Reynolds,  37  id.,  640. 

The  stockholder  must  pay,  not  debts  due  to  all  employees  of  the  company,  but 
those  due  to  "  laborei-s,  servants  or  employees,  other  than  contractors,"  and  not 
all  debts  due  to  them,  but  only  such  as"  are  due  for  "  services  performed  by  them 
for  such  corporation."  Wakefield  v.  Fargo,  90  N.  Y.,  213. 

One  employed  at  a  yearly  salary  as  a  bookkeeper  and  general  manager  was  held 
not  to  be  a  laborer,  servant  or  apprentice  within  the  meaning  of  the  former  act  of 
1848  or  1863.  Individuals  who  occupied  positions  and  were  usually  of  suck 
capacity  as  enabled  them  to  look  out  for  themselves,  were  not  deemed  to  be  within 
the  privilege  of  the  statute.  Id. 

A  reporter  employed  by  a  newspaper  company  was  held,  in  Hams  v.  Norvell, 
1  Abb.  N.  C.,  127.  to  be  a  laborer  or  servant  of  the  company  within  the  statute 
of  184S.  This  case  also  decided  that  a  "city  or  assistant  editor,"  if  not  an  officer 
of  the  company,  came  within  the  same  term. 

In  Conant  v.  Van  Schaick,  24, Barb.,  87,  it  was  held  that  a  civil  engineer  and  a 
rodman  were  included  within  the  terms  "  laborers  or  servants,"  in  section  10  of 
the  general  railroad  act.  This  case  made  no  restriction  short  of  officers  or  agents 
of  the  company. 

A  consulting  engineer  was  held,  in  Ericsson  v.  Brown,  38  Barb.,  390,  not  to  be 
within  the  language  or  policy  of  an  act  which  provided  for  the  personal  liability 
of  the  stockholders  for  debts  due  and  owing  to  its  "laborers  and  operatives    fo 
services  performed  for  the  corporation.     The  word  "servant"  was  not 
the  act. 

The  case  of  Aiken  v.  Wasson,  24  New  York,  482,  holds  that  a  contractor 
construction  of  a  railroad  is  not  a  "  laborer  "  or  "  servant "  within  the  provision* 
of  the  general  railroad  act.  To  the  same  effect  are  the  cases  of  Bout  well  T. 
Townsend,  37  Barb.,  205,  and  Balch  v.  N.  Y.  &  0.  M.  R.  R.  Co.,  46  N.  Y.,  531. 
The  latter  case  states  that  the  term  "  laborer"  in  this  act  did  not  include  one  wno 
contracts  for  and  furnishes  the  labor  and  services  of  others,  or  who  contracts  l 

67 


STOCK  CORPORATION  LAW. 

and  furnishes  a  team  or  teams  for  work,  whether  with  or  without  hia  services. 
See  Atcherson  v.  Troy  &  B.  R.  R.  Co.,  6  Abb.,  N.  S.,  329. 

In  "Williamson  v.  Wadsworth,  49  Barb,  294,  a  civil  engineer  and  traveling  agent 
at  a  fixed  salary  was  held  to  be  a  servant  of  the  corporation  within  the  meaning 
of  section  18  of  the  act  of  1848. 

It  was  held  in  Coffin  v.  Reynolds,  37  N.  Y.,  640,  that  the  secretary  of  a  copora- 
tion  •was  not  a  laborer  or  servant  of  the  corporation  under  section  18,  chap.  40  of 
1848.  The  decision  was  placed  on  the  ground  that  the  "secretary"  was  an  officer 
of  the  company. 

The  superintendent  and  attorney  are  not  •'  employees,  operatives  or  laborers," 
or  their  earnings,  "  wages,"  within  the  meaning  of  chap.  376  of  1885.  People  v. 
Remington,  45  Hun,  329. 

A  laborer  working  with  his  team  and  his  nired  man,  at  an  agreed  price  per  day, 
can  not  recover  under  section  12  of  the  general  railroad  act.  Atcherson  v.  T.  &  B. 
R.  R.  Co.,  1  Abb.  Ap.  Dec.,  13  ;  s.  c.,  6  Abb.,  N.  S.,  329  ;  Cummings  v.  N.  Y.  & 
O.  M.  R.  R.  Co.,  1  Lans.,  68;  Balch  v.  Same,  46  N.  Y.,  521. 

Under  chap.  755  of  1873,  surgeons  were  held  not  to  be  clerks  or  employees. 
People  ex  rel.  Satterlee  v.  Board,  etc.,  74  N.  Y.,  44. 

The  term  "  employees,"  is  usually  considered  as  embracing  laborers  and  ser- 
vants and  those  occupying  inferior  positions.  People  ex  rel.  Satterlee  v.  Board, 
etc.,  74  N.  Y.,  44. 

The  case  of  Richardson  v.  Abendroth,  43  Barb.,  162,  was  overruled  in  Coffin  u. 
Reynolds,  37  N.  Y.,  640,  as  to  the  point  that  the  secretary,  in  performing  the  ser- 
vices incident  to  the  duties  of  his  office,  is  a  servant  of  the  company,  within  the 
meaning  and  intent  of  the  act  of  1848. 

A  foreman,  who  renders  manual  service  of  the  same  kind  as  that  performed  by 
the  other  laborers  in  the  employ  of  the  company  as  one  of  his  principal  duties  and 
not  a  mere  incident  to  his  position,  was  held  to  be  a  laborer  or  servant  within  the 
meaning  of  section  18,  of  the  act  of  1848.  Short  v.  Medberry,  29  Hun,  39. 

A  secretary  of  a  corporation  is  not  a  servant  in  the  ordinary  and  usual  sense  in 
whir.h  the  term  is  used.  Smith  v.  Long  I.  R.  R.  Co.,  32  Hun,  38  ;  Gurney  v.  A.  & 
G.  W.  Ry.  Co.,  58  N.  Y.,  367  ;  Coffin  v.  Reynolds,  37  id.,  640. 

The  term  "employee,"  in  its  ordinary  and  usual  sense,  includes  all  whose  ser- 
vices are  rendered  for  another.  Gurney  v.  A.  &  G.  W.  Ry.  Co.,  58  N.  Y.,  358.  It 
ia  not  restricted  to  any  kind  of  employment  or  service,  but  includes  the  pro- 
fessional man  as  well  as  the  common  laborer.  Id.  This  case  arose  on  the  con- 
struction of  an  order  of  court  appointing  a  receiver,  and  it  may  be  that  a  different 
rule  of  construction  would  be  applied  in  such  case  than  in  the  case  of  a  statute. 
In  Ericsson  v.  Brown,  38  Barb.,  390 ;  .Aikin  v.  Wasson,  24  N.  Y.,  482,  and  Coffin  v. 
Reynolds,  37  id.,  640,  there  was  a  statute  liability  created  against  stockholders, 
and  such  statutes  are  always  strictly  construed,  and  in  view  of  the  supposed 
policy  and  general  legislative  intent  indicated  by  the  particular  terms  employed. 

In  an  action  brought  under  the  second  clause  of  this  section,  the  employee  may, 
under  chap.  257  of  1838,  compromise  with  and  release  one  or  more,  without  affect- 
ing his  right  to  recover  the  balance  of  his  claim  from  the  other  stockholders. 
Hen-ies  v.  Platt,  '21  Hun,  132. 

Who  are  not  employees,  etc.,  within  this  section.  People  v.  Remington  &  Sons ; 
Matter  of  Ringwood  (Sup.  Ct.,  1889),  25,  301;  25  N.  Y.  St.  Rep.,  301. 

An  employee  of  the  corporation,  who  comes  within  section  67,  can  maintain  an 
action  against  one  or  more  stockholders,  subject  to  the  conditions  of  section  58  and 
first  clause  of  section  57  of  this  act,  and  recover  against  them  without  limitation  of 
liability  save  the  amount  of  claim,  interest  and  costs,  though  the  capital  stock  has 
all  been  paid  in  and  the  certificate  duly  made,  filed  and  recorded.  He  can  also 
maintain  an  action  against  the  trustees  under  section  30,  in  case  the  annual  report 
has  not  been  filed,  or  under  section  31  in  case  a  false  report  has  been  filed.  The 
same  liability  exists  in  this  case. 

He  may  also  maintain  an  action  under  the  first  clause  of  section  57,  in  case  the 
capital  stock  has  not  been  paid  in  or  the  certificate  made,  tiled  and  recorded.  The 
stockholder's  liability  in  this  case  is  limited  to  the  amount  unpaid  on,  and  an 
amount  equal  to,  his  stock.  This  action  is  subject  to  defense  on  ground  of  pay* 
ment  or  claim  against  corporation.  No  such  defense  is  allowable  in  the  other 
cases.  If  he  fails  to  give  the  notice  or  bring  the  action  within  the  required  time, 
he  is  compelled  to  resort  to  one  of  the  other  remedies,  if  they  exist,  otherwise  he 
ia  without  relief.  The  first-mentioned  remedy  is  subject  to  the  conditions  con- 

68 


STOCK  CORPORATION  LAW. 

tained  in  section  58,  the  second  arid  third  clauses  of  sec.i»n  67,  and  the  statute  of 
limitations  of  six  years.  The  second  mentioned  remedy  is  subject  to  the  condi- 
tions oi  either  section  30  or  31  and  the  statute  of  limitations  of  three  years.  The 
last  mentioned  remedy  is  subject  to  the  conditions  of  the  first  clause  of  se^'inn  f>7, 
the  whole  of  section  58,  the  statute  of  limitations  of  six  years,  and  to  the  defenses 
above  named.  A  recovery  in  either  proceeding,  without  satisfaction,  is  no  bar  to 
any  other  mode  of  procedure. 

The  right  of  action  given  by  this  section  to  laborers  against  stockholders,  is  not 
merely  a  personal  privilege  granted  to  them  alone,  but  passes  on  assignment,  to 
the  assignee.  Krauser  v.  Ruckel,  17  Hun,  463;  Same  v.  Murdoch,  not  reported. 
When  ihe  liability  of  the  stockholders  to  the  laborer  has  accrued  and  becomes 
fixed,  there  is  no  reason  why  it  may  not  be  assigned,  and  the  assignee  acquire  all 
the  right  of  action  which  accrued  to  the  original  party.  Id. 

Th6  claim  of  a  laborer  for  a  corporation  is  assignable  and,  when  duly  assigned, 
the  assignee  takes  the  same  with  all  the  rights  and  remedies  secured  to  the  laborer 
by  this  section.  Pitcher  i>.  Drayton,  17  Hun,  429;  Krauser  •».  Murdo- '  ,  not 
reported ;  Kincaid  v.  Dwinelle,  59  N.  Y.,  548  ;  Bonne  11  v.  Wheeler,  1  Hun,  332. 

The  burden  is  upon  persons  claiming  preferences  to  bring  themselves,  by 
evidence,  within  the  statute.  People  •».  Remington,  45  Hun,  329. 

The  burden  of  proof  is  upon  the  employee,  to  show  that  t  heiv  is  a  debt  due  am' 
owing   for  services  performed   for  the   corporation,  by  a  laborer,  etc.,  within  the 
meaning  of  this  section.     Johnson  v.  Underbill,  52  N.  Y.,  203.     So,  he  mnr' 
that  the  person  sued  was,  when  the  debt  was  due  and  owing,  a  stockholder  of  the 
company.     Id. 

An  action  can  n  t  be  maintained  by  an  employee  of  the  company  against  t-  ', 
•without  bringing  in  the  other  stockholders  of  the  corporation.  Strong  v.  Wheaton, 
38  Barb.,  016. 

A  servant  of  a  corporation  must,  to  enforce  the  personal  liability  under  this 
section,  sue  each  stockholder  separately,  or  join  them  all  in  one  ar'  ion.  Dean  t). 
Whiton,  16  Hun,  203.  After  bringing  an  action  against  them  jointly,  he  can  not 
discontinue  as  to  one  stockholder,  without  the  consent  of  the  others.  Id.  Ee  ha*, 
by  suing  all  of  them,  elected  to  treat  them  as  joint  debtors.  Id.;  Herries  v.  Platt, 
21  Hun,  132. 

The  stockholders,  under  this  section,  are  to  be  considered  as  partners  as  to  the 
lebts  of  the  laborers,  etc.,  for  the  "rporation.  Clark  v.  Myers,  11  Hun,  608) 
Bailey  v.  Bancker.  3  Hill,  188  ;  Richardson  v.  Abendroth,  43  Barb  ,  162  ;  Wi.es 
13.  Suydam,  64  N.  Y.,  173. 

An  action  against  a  stockholder,  under  this  section,  must  be  brought  within  tw( 
years  from  the  maturity  of  tlv;  debt.  Short  v.  Medberry,  2H  Hun,  3!). 

A  stockholder,  who  has  paid  judgments  recovered  against  him  for  services 
performed  by  laborers  employed  by  the  company,  can  not  maintain  an  action 
at  law  against  another  stockholder  for  contribution,  but  must  bring  a  suit  in 
equity  against  them  all.  Clark  v.  Myers,  11  Hun,  608. 

While  section  54  conflicts  somewhat  with  section  6  of  the  Business  Corp. 
Law,  section  55  does  not  apply  merely  to  section  54,  but  is  a  general  statute 
of  limitation  and  therefore  governs  a  corporation  organized  under  the  business 
corporation  law.  v  Adams  v.  Wallace,  82  App.  Div.,  117. 

See  also  Lang  v.  Lutz,  83  App.  Div.,  534. 

In  action  against  stockholders  if  judgment  of  dissolution  is  rendered  it  is 
not  necessary  to  show  judgment  against  corporation  and  return  of  execution 
unsatisfied.  Lang  v.  Lutz,  180  N.  Y.  254. 

Dyer  v.   Drueker,  108  App.   Div.  238. 

§  55.  Limitation  of  stockholder's  liability. — No  action  shall  be  brought 
against  a  stockholder  for  any  debt  of  the  corporation  until  judgment  therefor 
has  been  recovered  against  the  corporation,  and  an  execution  thereon  has  been 
returned  unsatisfied  in  whole  or  in  part,  and  the  amount  due  on  such  execution 
shall  be  the  amount  recoverable,  with  costs  against  the  stockholder.  No 
stockholder  shall  be  personally  liable  for  any  debt  of  the  corporation  not  pay- 
able within  two  years  from  the  time  it  is  contracted,  nor  unless  an  action  for 
its  collection  shall  be  brought  against  the  corporation  within  two  years  after 
the  debt  becomes  due:  and  no  action  shall  be  brought  against  a  stockholder 
after  he  shall  have  ceased  to  be  a  stockholder,  for  any  debt  of  the  corporation, 
unless  brought  within  two  years  from  the  time  he  shall  have  ceased  to  be  a 
stockholder. 

69 


STOCK  CORPORATION  LAW. 

Former  section  58. 

Bee  section  24,  chap.  40  of  1848,  and  section  25,  chap.  611  of  1875,  now  repealed. 

Under  this  section,  a  creditor  can  not  bring  suit  against  a  stockholder  after  two 
years  from  the  time  he  ceased  to  be  such.  Walton  t>.  Coe,  110  N.  Y.,  109.  The 
creditor,  as  he  can  uut  bring1  suit  at  all  until  after  judgment  and  execution  against 
the  company,  is  subjected  to  the  danger  that,  by  litigation  and  delay  in  the  action 
against  the  company,  his  remedy  against  a  stockholder  who  has  ceased  to  be  such 
•lay  be  wholly  lost.  Id. 

After  two  years  have  elapsed  from  the  maturity  of  a  corporate  debt  without 
suit,  the  statutory  liability  of  a  stockholder,  under  this  section,  is  completely  dis- 
charged. See  Parrott  v.  Colby,  6  Hun,  55 ;  afTd  71  N.  Y.,  597. 

The  time  within  which  an  action  must  be  begun  for  the  recovery  of  a  debt 
owing  by  a  corporation,  so  as  to  lay  a  foundation  for  a  recovery  under  section  57  of 
this  act,  begins  to  run  on  the  day  when  the  debt  first  became  due.  Hardman  t>. 
Sage,  124  N.  Y.,  25. 

A  suit  for  the  collection  of  the  debt  must  be  brought  against  the  corporation 
within  two  years  after  it  becomes  due,  in  order  to  such  liability,  unless  some  cane* 
intervenes  before  the  expiration  of  such  period  sufficient  to  excuse  such  action. 
Hardman  v.  Sage,  47  Hun,  230;  Kincaid  v.  Dwindle,  59  N.  Y.,  548 ;  Caykendall 
v.  Corning,  88  id.,  129. 

Where  the  time  of  the  payment  of  a  debt  is  extended  by  the  taking  of  a  promis- 
sory note,  which  is  sued  within  two  years  from  the  date  of  its  maturity,  but  more 
than  two  years  after  the  debt  becomes  due,  the  claim  of  the  creditor  against  the 
stockholders  is  lost  and  they  can  not  be  charged  with  the  payment  of  the  debt. 
Hardman  v.  Sage,  124  N.  Y.,  25. 

In  Fisher  v.  Marvin,  47  Barb.,  159,  it  was  held  that  the  debt  was  contracted 
when  the  renewal  note  was  given,  but  this  case  was  overruled  on  this  point  by 
Jagger  Iron  Co.  v.  Walker,  76  N.  Y.,  521. 

Where  a  note  payable  four  months  after  day  was  discounted  for  the  company, 
and  subsequently  renewed  once  for  four  months  and  again  for  five  months,  and 
upon  maturity  of  latter  renewal  note,  an  action  was  brought  against  the  company, 
it  was  held,  in  Veeder  v.  Mudgett,  that  it  was  a  debt  to  be  paid  within  one  year 
from  the  time  it  was  contracted,  and  that  the  suit  was  brought  within  one  year 
after  it  became  due,  within  the  section  24  of  the  act  of  1848. 

The  fact  that  an  action  was  not  brought  against  the  corporation  within  two 
years  as  required  by  this  section,  is  matter  which  the  defendant  must  plead  in  hit 
answer.  Woodward  v.  Holland  M.  Co.,  39  N.  Y.  St.  Rep.,  411.  It  is  not  necee- 
•r.ry  for  the  complaint  to  negative  such  defense.  Id. 

In  au  action,  under  this  section,  to  enforce  the  personal  liability  of  stockholders 
tor  debts  due  to  the  laborers  of  the  company,  the  complaint  must  show  that  the 
debt  was  to  have  been  paid  within  two  years  from  the  time  it  was  contracted.  . 
Dean  v.  Mace,  19  Hun,  391. 

In  case  of  a]series  of  renewals  of  a  note  given  for  goods  purchased,  the  indebted- 
ness against  the  corporation  arose  on  the  purchase,  and  became  due  on  the  maturity 
of  the  first  note  within  the  meaning  of  this  section.  Jagger  Iron  Co.  v.  Walker,  78 
N.  Y.,  621.  If  the  action  against  the  corporation  is  not,  in  such  case,  brought 
within  two  years  after  the  maturity  of  the  first  note,  a  stockholder  is  not  personally 
liable  for  the  debt.  Id. 

Before  a  creditor  of  a  corporation,  can  recover  of  a  stockholder,  under  this  sec- 
tion, the  debt  of  the  orporation  to  him,  he  must  prove  the  existence  of  the  debt, 
recovery  of  a  judgment  and  the  issuing  and  return  of  an  execution  thereon  unsat- 
isfied. Berridge  v.  Abernethy,  24  W.  Dig.,  513 ;  Richards  v.  Beach,  27  id.,  355. 

A.  suit  against  the  company  on  notes  given  to  secure  a  debt  is  not  an  action  foi 
the  collection  of  the  debt  such  as  last  section  contemplated.  Griffith  v.  Green,  31 
N.  Y.  St.  Rep.,  705. 

This  section  makes  the  prosecution  of  a  suit  against  the  company  a  condition 
precedent  to  the  right  against  a  stockholder.  Birmingham  Nat.  Bk.  v.  Mosser,  14 
Hun,  605 ;  Lindsley  r.  Simonds,  2  Abb.,  N.  S.,  69. 

A  proceeding  in  rein  affecting  only  attached  property  of  the  corporation  and  _ex- 
ecution  against  that  property  is  not  a  compliance  with  the  condition  of  this  section. 
Rocky  M.  Nat.  Bk.  v.  Bliss,  89  N.  Y.,  338.  Nor  is  the  recovery  of  a  judgment 
and  issuing  of  execution  in  another  state  such  compliance.  Id.  A  judgment  lit  and 
•xecution  issued  out  of  a  court  of  this  state  are  required.  Id. 

70 


STOCK  CORPORATION  LAW, 

This  section  muat  b«  construed  aa  requiring-  the  recovery  of  judgment  in  tb« 
action  against  the  company,  and  the  return  of  an  execution  unsatisfied  on  auch 
judgment.  Lindaley  v.  Simonds,  2  Abb.,  N.  8.,  69.  The  complaint  in  the  action 
against  stockholders  must  allege  judgment  and  execution  unsatisfied.  Id.  Thu 
case  was  overruled  in  Handy  v.  Draper,  23  Hun,  256,  on  thia  point,  but  thi.s  latter 
case  was  reversed  in  89  N.  Y.,  324. 

A  creditor  can  not  maintain  an  action  against  a  stockholder  under  section  57, 
until  he  has  obtained  a  judgment  upon  his  claim  against  the  corporation.  And  aa 
execution  has  been  issued  thereon  and  returned  unsatisfied.  Handy  v.  Draper,  89 
N.  Y.,  334  ;  Kincaid  v.  Dwinelle,  59  id.,  548;  Lindsley  v.  Simonds,  2  Abb.,  N.  8. 
69  ;  Dean  v.  Mace,  19  Hun,  391. 

No  action  can  be  maintained  by  a  judgment  creditor  to  enforce  the  individual 
liability  of  a  stockholder  in  a  business  corporation,  until  execution  has  been  issued 
and  returned  unsatisfied.  Richards  ».  Beach,  19  Abb.  N.  C.,  84.  Nor  can  such 
action  be  maintained  for  unpaid  subscriptions,  or  on  account  of  unpaid  capital 
stock.  Richards  v.  Coe,  19  Abb.  N.  C.,  79. 

This  section  requires  a  judgment  to  have  been  recovered  against  the  company 
in  the  courts  of  this  state.  Deant).  Mace,  19  Hun,  391. 

A  compliance  with  the  condition  precedent  prescribed  by  this  section  is 
excused,  when  rendered  legally  impossible  or  fruitless.  Shellington  v.  Howland, 
53  N.  Y.,  371  ;  Lovett  v.  Cornwell,6  Wend.,  369  ;  People  v.  Bartlett,  3  Hill,  570  ; 
Loomisfl.  Tifft,  16  Barb.,  541.  Such  effect  is  produced,  where  the  creditor  ia 
prevented  from  prosecuting-  his  action  against  the  corporation  to  judgment  and 
execution,  either  by  the  act  of  the  stockholder  or  tho  operation  of  a  paramount 
statute  Shellington  •».  Howland,  ante. 

A  failure  to  sue  the  corporation  within  two  years  after  the  maturity  of  the  debt, 
is  excused  by  its  dissolution  within  such  two  years,  and  will  not  prevent  an  action 
against  a  stockholder  on  his  unpaid  subscription.  Arnot  v.  Sage,  5  N.  Y. 
Supp.,  477. 

A  final  judgment  dissolving  the  corporation  in  an  action  brought  by  the  people, 
relieves  the  creditor  from  the  necessity  of  an  attempt  first  to  recover  the  debt  of 
the  corporation.  Hardman  v.  Sage,  124  N.  Y.,  25 ;  Shellington  v.  Howland,  67 
Barb.,  14 ;  aflTd,  53  N.  Y.,  371 ;  Kincaid  v.  Dwinelle,  5  J.  &  3.,  328 ;  aflTd  59 
N.  Y.,  548  ;  Flash  v.  Conn.,  109  U.  8.,  371  ;  Birmingham  Nat.  Bk.  v.  Mosser,  14 
Hun,  605  ;  Handy  v.  Draper,  89  N.  Y.,  335 ;  Rocky  M.  Nat.  Bk.  v.  Bliss,  id.,  338  ; 
Cuykendall  •».  Corning,  88  id.,  129. 

Whenever  a  stockholder  shall  be  divested  of  his  interest  in  or  control  over  th« 
affairs  of  the  corporation,  by  actual  dissolution  thereof  by  formal  judgment,  or  by 
a  surrender  of  its  corporate  rights,  privileges  and  franchises,  the  time  begins  to 
run,  and,  at  the  end  of  two  years  therefrom,  the  stockholder  is  no  longer  liable 
for  any  debt  of  the  corporation.  Hollingshead  •».  Woodward,  107  N.  Y.,  96. 
When  the  organization  is  divested  of  its  rights,  privileges,  franchises  and  property 
by  virtue  of  the  appointment  of  a  receiver,  the  members  cease  to  be  stockholders 
within  the  meaning  of  this  section.  Id.  ;  Slee  v.  Bloom,  19  Johns.,  456;  Bradt  v. 
Benedict,  17  N.  Y.,  93;  Bruce  t>.  Platt,  80  id.,  379.  The  case  of  Kincaid  v. 
Dwinelle,  59  N.  Y..  548,  was  commented  on  and  distinguished  in  Hollingshead  t>. 
Woodward,  107  N.  Y.,  96. 

Proof  of  the  debt  against  the  corporation  in  bankruptcy  was  held,  in  Shelling- 
ton v  Howland,  53  N.  Y.,  371,  not  to  be  a  bar  to  an  action  thereon  against  th« 
stockholder. 

It  is  not  a  sufficient  excuse  for  a  non-compliance  with  this  section  to  show 
that  within  two  years  a  petition  in  bankruptcy  was  filed  by  the  creditor  and 
others  against  the  company,  upon  which  it  was  adjudged  a  bankrupt,  and 
in  which  proceedings  the  creditor  duly  proved  his  claim.  Birmingham  v. 
Mosser,  14  Hun,  605;  Ansonia  B.  &  C.  Co.  v.  N.  L.  Co.,  53  N.  Y.,  123;  Kin- 
caid v.  Dwinelle,  59  id.,  548. 

Action  against  a  stockholder  of  a  full  liability  corporation  organized  under 
the  business  corporation  law  does  not  fall  within  the  limitation  of  ten  years. 
Adams  v.  Slingerland,  39  Misc.,  638. 

See  also  Long  Island  Bottlers  Union  v.  S.  Liebman's  Sons  Brewing  Co., 
83  App.  Div.,  146. 

S  56.  Increase  or  reduction  of  number  of  shares.— The  number  of 
shares  into  which  the  capital  stock  of  any  stock  corporation  is  divided  may  be 
increased  or  reduced  by  a  two-thirds  vote  of  all  stock  duly  represented  at  a  meet- 
ing held  and  conducted  in  like  manner,  and  upon  filing  a  like  certificate,  as  required 
for  the  increase  or  reduction  of  its  capital  stock.  If  such  increase  or  reduction  of 
the  number  of  shares  be  so  authorized,  the  corporation  shall  issue  to  each  stock- 
holder certificates  foi  as  many  shares  of  the  new  stock  as  equal  in  par  value  the 
shares  of  the  old  stock  held  by  him,  upon  surrender  Jand  cancellation  of  such  old 
stock.  This  section  docs  not  authorize  the  increase  or  reduction  of  the  capital 
stock  of  such  corporation. 

Amended  by  ch.  354  of  1901.    In  effect  April  16,  1901. 

71 


STOCK  CORPORATION  LAW. 

§  57.  Voluntary  dissolution. —  Any  stock  corporation,  except  a  moneyed  or 
a  railroad  corporation,  may  be  dissolved  before  the  expiration  of  the  time  lim- 
ited in  its  certificate  of  incorporation  or  in  its  charter  as  follows:  The  board 
of  directors  of  any  such  corporation  may  at  a  meeting  called  for  that  purpose 
upon,  at  least,  three  days'  notice  to  each  director,  by  a  vote  of  a  majority  of 
the  whole  board,  adopt  a  resolution  that  it  is  in  their  opinion  advisable  to  dis- 
solve such  corporation  forthwith,  and  thereupon  shall  call  a  meeting  of  the 
stockholders  for  the  purpose  of  voting  upon  a  proposition  that  such  corpora- 
tion be  forthwith  dissolved.  Such  meeting  of  the  stockholders  shall  be  held, 
no*  less  than  thirty  nor  more  than  sixty  days  after  the  adoption  of  such  reso- 
lution, and  the  notice  of  the  time  and  place  of  such  meeting  so  called  by  the 
directors  shall  be  published  in  one  or  more  newspapers  published  and  circulating 
in  the  county  wherein  such  corporation  has  its  principal  office,  at  least  once  a 
week  for  three  weeks  successively  next  preceding  the  time  appointed  for  hold- 
ing such  meeting,  and  on  or  before  the  day  of  the  first  publication  of  such  notice, 
a  copy  thereof  shall  be  served  personally  on  each  stockholder,  or  mailed  to  him 
at  his  last-known  post-office  address.  Such  meeting  shall  be  held  in  the  city, 
town  or  village  In  which  the  last  preceding  annual  meeting  of  the  corporation 
•was  held,  and  said  meeting  may,  on  the  day  so  appointed,  by  the  consent  of  a 
majority  in  interest  of  the  stockholders  present,  be  adjourned  from  time  to  time, 
and  notice  of  such  adjournment  shall  be  published  in  the  newspapers  in  -which 
the  notice  of  the  meeting  is  published.  If  at  any  such  meeting  the  holders  of 
two-thirds  in  amount  of  the  stock  of  the  corporation,  then  outstanding,  shall,  in 
person  or  by  attorney,  consent  that  Buch  dissolution  shall  take  place  and  signify 
such  consent,  in  writing,  then,  such  corporation  shall  file  such  consent,  attested 
by  its  secretary  or  treasurer,  and  its  president  or  vice  president,  together  with 
the  powers  of  attorney  signed  by  such  stockholders  executing  such  consent  by 
attorney,  with  a  statement  of  the  names  and  residences  of  the  then  existing  board 
of  directors  of  said  corporation,  and  the  names  and  residences  of  its  officers  duly 
verified  by  the  secretary  or  treasurer  or  president  of  said  corporation,  in  the 
office  of  the  secretary  of  state.  The  secretary  of  state  shall  thereupon  issue  to 
such  corporation,  in  duplicate,  a  certificate  of  the  filing  of  such  papers  and  that 
it  apppears  therefrom  that  such  corporation  has  complied  with  this  section  in 
order  to  be  dissolved,  and  one  of  such  duplicate  certificates  shall  be  filed  by  such 
corporation  in  the  office  of  the  clerk  of  the  county  in  which  such  corporation  has 
its  principal  office  ;  and  thereupon  such  corporation  shall  be  dissolved  and  shall 
cease  to  carry  on  business,  except  for  the  purpose  of  adjusting  and  winding  up 
its  business.  The  board  of  directors  shall  cause  a  copy  of  such  certificate  to  be 

Sublished  at  least  once  a  week  for  two  weeks  in  one  or  more  newspapers  pub 
shed  and  circulating  in  the  county  in  which  the  principal  office  of  such  corpo 
ration  is  located,  and  at  the  expiration  of  such  publication,  the  said  corporation 
by  its  board  of  directors  shall  proceed  to  adjust  and  wind  up  its  business  and 
affairs  with  power  to  carry  out  its  contracts  and  to  sell  its  assets  a.*-  public  or 
private  sale,  and  to  apply  the  same  in  discharge  of  debts  and  obligations  of  such 
corporation,  and.  after  paying  and  adequately  providing  for  the  payment  of  such 
debts  and  obligations,  to  distribute  the  balance  of  assets  among  the  stockholder* 
of  said  corporation,  according  to  their  respective  rights  and  interest.  8aii* 
corporation  shall  nevertheless  continue  in  existence  for  the  purpose  of  paying, 
satisfying  and  discharging  any  existing  debts  or  obligations,  collecting  and 
distributing  its  assets  ana  doing  all  other  acts  required  in  order  to  adjust  and  wind 
up  its  business  and  affairs,  and  may  sue  and  be  sued  for  the  purpose  of  enforcing  such 
debts  or  obligations,  until  its  business  and  affairs  are  fully  adjusted  and  wound 
up.  After  paying  or  adequately  providing  for  the  debts  and  obligations  of  the 
corporation  the  directors  may,  with  the  written  consent  of  the  holders  of  two- 
thirds  in  amount  of  the  capital  stock,  sell  the  remaining  assets  or  any  part 
thereof  to  a  corporation  organized  under  the  laws  of  this  or  any  other  state,  and 
engaged  in  a  business  of  the  same  general  character,  and  take  in  payment 
therefor  the  stock  or  bonds  or  both  of  such  cprporation  and  distribute  them 
among  the  stockholders,  in  lieu  of  money,  in  proportion  to  their  interest  therein, 

7la 


STOCK  CoRFOUATioN  LAW. 

but  110  such  sale  6ha.ll  be  valid  as  against  any  stockholder,  who,  within  sixty 
days  after  the  mailing  of  notice  to  him  of  such  sale  shall  apply  to  the  supreme 
court  in  the  manner  provided  by  section  thirty-three  of  this  act,  lor  an 
appraisal  of  the  value  of  his  interest  in  the  assets  so  sold  ;  unless  within  thirtv 
days  after  such  appraisal  the  stockholders  consenting  to  such  sale,  or  some  of 
them,  shall  pay  to  sucli  objecting  stockholder  or  deposit  for  his  account  in  the 
manner  directed  by  the  court,  the  amount  of  such  appraisal  and  upon  such 
payment  or  deposit  the  interest  of  such  objecting  stockholder  shall  yest  in  the 
person  or  persons  making  such  payment  or  deposit. 

Added  by  chap.  932  of  1896. 

Amended  by  chap.  760  of  1900.     In  effect  May  4,  1900. 

§58.  Merger.— Any  domestic  stock  corporation  and  any  foreign  stock  corpo- 
ration authorized  to  do  business  in  this  state  lawfully  owning  all  the  stock  of  jiny 
other  stock  corporation  organized  for,  or  engaged  in  business  similar  or  incidental 
to  that  of  the  possessor  corporation  may  file  in  the  office  of  the  secretary  of  state, 
under  its  common  seal,  a  certificate  of  such  ownership,  and  of  the  resolution  of  its 
board  of  directors  to  merge  such  other  corporation,  and  thereupon  it  shall  acqu  re 
and  become,  and  be  possessed  of  all  the  estate  property,  rights,  privileges  and 
franchises  of  such  other  corporation,  and  they  shall  vest  in  and  be  held  and 
enjoyed  by  it  as  fully  and  entirely  and  without  change  or  diminution  as  the 
same  were  before  held  and  enjoyed  by  such  other  corporation  and  be  managed 
and  controlled  by  the  board  of  directors  of  such  possessor  corporation,  and  in  its 
name,  but  without  prejudice  to  any  liabilities  of  such  other  corporation  or  the  rights 
of  any  creditors  thereof.  Any  bridge  corporation  may  be  merged  under  this  sec- 
tion with  any  railroad  corporation  wlu'ch  shall  have  acquired  the  right  by  contract 
lo  run  its  cars  over  the  bridge  of  such  bridge  corporation 

Added  by  chap.  932  of  1896. 

Amended  by  chap.  476  of  1900.     In  effect  April  17,  1900. 
Amended  by  chap.  98  of  1902.     In  effect  March  6,  1903. 

§  59.  Change  of  place  of  business. — Any  stock  corporation  now  existing  or 
hereafter  organized  under  the  laws  of  this  state,  except  rnonied  corporations, 
may  at  any  time  change  its  principal  office  and  place  of  business  from  the 
city,  town  or  county  named  in  its  certificate  of  incorporation,  or  to  which  it 
may  have  been  changed  under  the  provisions  of  this  section,  to  any  other 
city,  town  or  county  in  this  state,  in  which  it  may  desire  to  actually  transact 
and  carry  on  its  regular  business  from  day  to  day,  provided,  and  Buch  change 
has  been  authorized,  either  by  unanimous  consent  of  the  stockholders  expressed 
in  \vriting  and  duly  acknowledged  and  filed  in  the  office  of  the  secretary  of 
state,  or  by  a  vote  of  the  stockholders  of  said  corporation  at  a  special  meeting 
of  stockholders  called  for  that  purpose.  When  such  change  shall  be  authorized 
by  the  stockholders  as  herein  provided,  the  president  and  secretary  and  a 
majority  of  the  directors  of  such  corporation  shall  sign  a  certificate  stating 
the  name  of  said  corporation,  the  city,  town  and  county  where  its  principal 
ofilce  and  place  of  business  was  originally  located,  and  to  which  it  may  have 
been  subsequently  changed,  and  the  city,  town  and  county  to  which  it  is  desired 
to  change  its  said  principal  office  and  place  of'business,  and  that  it  is  the  pur- 
pose of  said  corporation  to  actually  transact  and  carry  on  its  regular  business 
from  day  to  day  at  such  place,  and  that  such  change  has  been  authorized  as 
herein  provided,  and  the  names  of  the  directors  of  said  corporation  and  their 
respective  places  of  residence,  which  certificate  shall  be  verified  by  the  oaths  of 
all  the  persons  signing  the  same,  and  when  so  signed  and  verified,  shall  be  filed 
in  the  office  of  the  secretary  of  state  and  a  duplicate  thereof  in  the  office  of 
the  clerk  of  the  county  from  which  said  principal  office  and  place  of  business 
is  about  to  be  removed  or  changed,  and  another  in  the  office  of  the  clerk  of  the 
county  to  which  said  removal  or  change  is  to  be  made,  and  thereupon  the  prin- 
cipal office  and  place  of  business  of  such  corporation  shall  be  changed  as  stated 
in  said  certificate. 

Added  by  ch.        of  1896.     In  effect  June  16,  1896. 

Amended  by  ch.  489  of  1905. 

7!b 


STOCK  CORPORATION  LAW. 

§  60.  Liabilities  of  officers,  directors  and  stockholders  of  for- 
eign corporations. — Except  as  otherwise  provided  in  this  chapter  the 
officers,  directors  and  stockholders  of  a  foreign  stock  corporation  trans- 
acting business  in  this  state,  except  moneyed  and  railroad  corporations, 
shall  be  liable  under  the  provisions  of  this  chapter,  in  the  same  man- 
ner and  to  the  same  extent  as  the  officers,  directors  and  stockholders 
of  a  domestic  corporation,  for: 

1.  The  making  of  unauthorized  dividends; 

2.  TJie  creation  of  unauthorized  and  excessive  indebtedness; 

3.  Unlawful  loans  to  stockholders; 

4.  Making  false  certificates,  reports  or  public  notices; 

5.  An  illegal  transfer  of  the  stock  and  property  of  such  corporation, 
when  it  is  insolvent  or  its  insolvency  is  threatened; 

6.  The  failure  to  file  an  annual  report. 

Such  liabilities  may  be  enforced  in  the  courts  of  this  state,  in  the 
same  manner  as  similar  liabilities  imposed  by  law  upon  the  officers, 
directors  and  stockholders  of  domestic  corporations. 

A  New  Jersey  Corporation  transacting  business  in  New  York,  may  sue  in 
New  "iork  to  recover  from  its  directors  capital  divided  among  its  stockholders 
in  dividends.  Hutchinson  v.  Stadler,  80  App.  Div.,  424. 

Added,  ch.  384  of  1897. 

§  61.  Dissolution  by  incorporators. — The  incorporators  named  in 
any  certificate  of  incorporation  filed  for  the  purpose  of  creating  a 
domestic  stock  corporation,  other  than  a  moneyed  or  transportation 
corporation,  may,  before  the  payment  of  any  part  of  the  capital,  and 
before  beginning  business,  surrender  all  corporate  rights  and  fran- 
chises, by  signing,  verifying  and  filing  in  the  office  of  the  secretary  of 
state  and  the  clerk  of  the  county  where  the  certificate  of  incorporation 
is  filed,  a  certificate  setting  forth  that  no  part  of  the  capital  has  been 
paid,  that  there  are  no  liabilities,  that  such  business  has  not  been 
begun,  and  surrendering  all  rights  and  franchises;  and  proof  of  the 
facts  set  forth  in  such  certificate  to  the  satisfaction  of  the  secretary 
of  state;  and  thereupon  the  said  corporation  shall  be  dissolved,  and 
its  corporate  existence  and  powers  shall  cease. 

Added  by  ch.  296  of  1904.     In  effect  April  13,  1904. 

§  62.  Partly  paid  stock. — The  original  or  the  amended  certificate 
of  incorporation  of  any  stock  corporation  may  contain  a  provision 
expressly  authorizing  the  issue  of  the  whole  or  of  any  part  of  the 
capital  stock  as  partly  paid  stock,  subject  to  calls  thereon  until  the 
whole  thereof  shall  have  been  paid  in.  In  such  case,  if  in  or  upon 
the  certificate  issued  to  represent  such  stock,  the  amount  paid  thereon 
shall  be  specified,  the  holder  thereof  shall  not  be  subject  to  any  lia- 
bility except  for  the  payment  to  the  corporation  of  the  amount  re- 
maining unpaid  upon  such  stock,  and  for  the  payment  of  indebted- 
ness to  employes  pursuant  to  sections  fifty-four  and  fifty-five  of  this 
chapter;  and  in  any  such  case,  the  corporation  may  declare  and  may 
pay  dividends  upon  the  basis  of  the  amount  actually  paid  upon  the 
respective  shares  of  stock  instead  of  upon  the  par  value  thereof. 

Added  by  ch.  854  of  1901.     In  effect  April  16,  1901. 

71c 


By  the  provisions  of  chap.  564  of  1890,  the  original  Stock  Corporation 
Law,  the  following  laws  were  repealed. 

SCHEDULE  OP  LAWS  REPEALED. 


Revised  Statu 
Revised  Statu 

Part  I,  chapter  18,  title  3    Section  6. 
Part  I,  chapter  18,  title  4    All  except  ejec- 
tion 5  and  6. 

Laws  of 

Chapter. 

SECTIONS. 

1811  

67  

3,  5,  7. 

1822  

213  

">  ">  • 
All. 

1842  

165  

All. 

1847  

210  

38,  39,  40,  41,  43,  44,  46,  61. 

1847  

405  

All. 

1848  

37  

3,  5,  6,  8,  10,  11,  12,13,  14,  16,  16,  Tff 

20,  21,  22. 

1848  

40  

3,  5,  6,  8,  10,  11,  12,  13,  14,  16,  16,  K 

18,  19,  20,  21,  22,  23,  24,  25,  27. 

1848  

269  

2,  5,  12,  13,  16. 

1848  

265  

8,10. 

1850  

140  

4,5,7,8,9,10,11,48. 

1852  

228  

3  to  14  both  inclusive. 

1853  

117  

3,  5,  6,  8,  10  to  25  both  inclusive. 

1863  

135  

3,  4,  6,  7,  8,  9,  10,  14,  15,  16,  17. 

1853  

333  

2. 

1853  

395  

All  of  section  6  to  and  including    th» 

word  "trustees"  in  line  7. 

1863  

502  

All. 

1854  

232  

3,  5,  6,  8,  10,  11,  12,  13,  14,  15,  16,  17C 

18,  19,  20,  21,  22,  24,  25,  27,  28. 

1855  

425  

First  and  last  sentences  of  section  5. 

1857  

546  

3,  5,  6,  8  and  11  to  20  both  inclusive. 

1857  

776  

7. 

1860  

269  

All. 

1861  

149  

2,  5,  6,  7,  9. 

1863  

134  

All. 

1864  

517  

2. 

1866  

73  

All. 

1867  

419  

2. 

1867  

480  

All. 

1867  

971  

First  two  sentences  of  6,  and  6,  7,  8. 

1867  

974  

4  to  11  both  inclusive. 

1868  

290  

All. 

1870  

773  

All. 

1872  

tiQo  •••••••••••• 

3,  last  three  sentences  of  4,  and  7,  8,  9, 

10. 

18721  

146  

All. 

SCHEDULE  OF-  LAWS  REPEALED  —  (Continued.) 


Laws  of 

Chapter 

SECTIONS. 

1872  

611  

All. 

1872  

820  

4,  9,  10,  13,  14,  15. 

1873  

151  

All. 

1873  

469  

All  but  section  5. 

1873  

737  

7,8. 

1874  

143  

3,  5,  6,  8,  10,  11,  13,  14,  17. 

1874  

288  

4. 

1874  

430  

All. 

1875  

4  

All. 

1875  

343  .-  

9. 

1875  

606  

10  to  15  both  inclusive. 

1875  

611  

5,  10,  11,  12,  13  to  26  both  inclusive 

and  28,  29. 

1S77  

228  

3,  4,  5. 

1878  

163  

1. 

1878  

203  

4,  5,  6,  7,  8,  9,  10,  11,  12,  39,  43,  44. 

1878  

264  

All. 

1879  

393  

All. 

1879  

395  

All. 

1879  

413  

All. 

1880  

155  

All. 

1880  

182  

1. 

18K..^  

225  

All. 

1880  

510  

All. 

1881  

468  

4,  7,  8,  10,  11.  11 

1881  

509  

1. 

1884  

252  

19. 

1884  

397  

All. 

1885  

141  

All. 

1885  

171  

All. 

1885  

489  

All  except  section  2. 

1886  

586  

AIL 

1888  

293  

3. 

1888  

462  

3,  4,  5. 

STOCK  CORPORATION  LAW. 

No.  1. 
Section  3  of  Stock  Corporation  Law.    Form  of  oartifloat*  of  incorporation. 

STATE  OF  NEW  YORK,       ) 

County  of ,  j  M> 

We,  the  undersigned,  do,  in  conformity  with  the  provisions  of  section 
8  of  the  Stock  Corporation  law,  hereby  certify  to  the  following  matters : 

The  property  and  franchises  of  the ,  a  domestic  corporation, 

organized  under  chap.  —  of  the  laws  of ,  were  duly  sold,  on  the 

day  of ,  18 — ,  by  virtue  of  a  judgment  of  the court  of 

this  state,  dated  and  entered  in  the  office  of  the  clerk  of  the  county  of 
,  on  the day  of ,  18 — . 

The  property,  sold  as  above  stated,  is  described  as  follows: 
(Here  give  brief  description.) 

At  euch  sale,  the  said  property  was  purchased  by ,  who  desire 

to  become  a  corporation,  and  have  associated  with  themselves  the 
following  persons,  a  majority  of  whom  are  citizens  and  residents  of  this 
state,  and  all  unite  with  the  purchasers  in  this  certificate.  (Here 
^insert  names.) 

^    The  name  of  the  corporation  intended  to  be  formed  by  the  filing  of 
this  certificate  is  (state  name). 

The  maximum  amount  of  its  capital  stock  is  (state  amount  of  capital 
•tock),  and  the  number  of  shares  into  which  the  same  is  to  be  divided 

IB  (give  number),  of  which shares  are  to  be  common  stock,  and 

shares  are  to  be  preferred  stock.     The  rights  pertaining  to  each 

class  shall  be  as  follows:     (Here  particularly  describe  such  rights.) 

The  number  of  directors^who  shall  manage  the  affairs  of  the  new 
corporation  for  the  first  year,  and  their  names  and  post-office  addrea* 
are  as  follows : 

JNames.  Post-office  address. 


The  following  plan  or  agreement  was  entered  into  at  or  previous  to 
the  time  of  such   sale,  in   anticipation   of   the   formation   of  a  new 
corporation,  and  the  purchase  was  made  pursuant  to  it : 
(Here  insert  plan  or  agreement,  if  any.) 
In  witness  whereof,  we,  the  said  purchasers,  and  their  associates  (if 

any),  have  hereto  set  our  hands,  this day  of ,  18 — . 

(Signatures.) 

(Add  acknowledgment  clause  as  in  No.  1  of  General  Corporation 
Law.)  

•  See  subd.  I  of  section  8.  p.  «. 
74 


STOCK  CORPOKATIOW  LA.W — FOBMI. 

No.  2. 
Station  21  of  Stock  Corporation  Law.     Form  qf  certified  transcript  of  (Ac 

minufai,  etc. : 

STA.TB  or  N«w  YORK,     ) 
County  of ,  / 

We,  the  undersigned,  president  and  secretary,  do  hereby  certify 
that  the  following  is  a  correct  transcript  of  the  minutes  of  a  meeting 

of  stockholders  of  the ,  held  pursuant  to  article  2  section  21  of 

the  stock  corporation  law,  to  wit : 

,  N,  Y. ,  18—. 

A  special  meeting  of  the  stockholders  of  the was  held  this 

day  at o'clock  —  M.  to  determine  whether  the  number  of  direc- 
tors shall  be  increased  (or  reduced). 

Such  meeting  was  held  at  the  office  of  the  company,  the  usual 
place  of  meeting  of  its  directors,  on  two  weeks'  notice  in  writing  to 
each  stockholder  of  record ;  such  notice  having  been  served  person- 
ally, or  by  mail,  postage  prepaid,  directed  to  each  stockholder  at  his 
last  known  post  office  addres. 

The  following  is  a  true  copy  of  said  notice : 
"Notice  to  Stockholders. 

,  N.  Y. ,  18—. 

Notice  IB  hereby  given  that  a  special  meeting  of  the  stockholders 

of  the will  be  held  at  the  office  of  the  company  at  No. 

st.  in  the ,  N.  Y.,  on  the day  of ,  18 — ,  at  —  o'clock 

—  M.  of  that  day,  to  determine  whether  the  number  of  its  directors 
•hall  be  increased  (or  reduced,  as  the  case  may  be). 


Secretary  of . M 

Proof  of  service  of  said  was  duly  filed  in  the  office  of  the  corpora- 
tion at  or  before  the  time  of  such  meeting. 

At  the  time  and  place  mentioned  in  such  notice,  the  meeting  was 
held  pursuant  thereto,  and  duly  organized  by  choosing ,  presi- 
dent, and ,  secretary  thereof. 

The  following  resolution  was  duly  moved  by  and  duly 

•econded  by and  adopted  on  a  vote  taken  by  ayes  and  noes : 

"  Resolved,  that  the  number  of  directors  of  the be  increased 

(or  reduced,  as  the  case  may  be),  from  ,  the  present  number, 

to ." 

The  following  stockholders,  owning  the  number  of  shares  of  stock 
set  opposite  their  respective  names,  voted  in  favor  of  such  resolution, 
to  wit: 

Naxnea.  Number  of  share*. 


STOCK  CORPORATION  LAW — Fo 

The  following  shareholders,  owning  the  number  of  shares  of 
•et  opposite  their  respective  names,  vot«d  against  its  adoption,  to  wit : 
Names  Number  of  share* 


(If  none  voted  against  its  passage,  then  state  in  place  of  last  cli 
No  stockholder  voted  against  its  adoption.. 

Said  resolution  was  thereupon  declared  duly  adopted,  and  the  meet- 
Ing  adjourned. 

In  witness  whereof,  we  hare  made,  subscribed  and  verified  the  fore- 
going certificate,  this day  of ,  18 — . 

,  Prwvfrm. 

,  toontary. 

BTATB  OF  NBW  YORK,     ) 
County  of ,  J 

aud ,  being  severally  duly  sworn,  does,  each  for  him' 

self,  say,  that  they  are  the  persons  chosen  president  and  secretary, 

respectively,  of  the  meeting  of  stockholders  of  the ,  held  at  the 

time  and  place  above  mentioned,  to  determine  whether  the  number  of 
directors  thereof  shall  be  increased  (or  reduced,  as  the  case  may  be) ; 
that  the  foregoing  is  a  correct  transcript  of  the  proceedings  of  sucb 
meeting,  as  entered  in  the  minutes  of  the  corporation,  and  the  whob 
thereof. 

(Jurat.)  . 

A  form  for  the  notice  of  such  special  meeting  \*  found  in  the  fore- 
going form. 


No.  3. 

faction  28  of  Stock  Corporation  Low.    Form  </  oattfaf  m*p«ton  < 

ton. 

BTATB  OF  NBW  YORK,      ) 
County  of ,  J 

and and ,  the  inspectors  duly  appointed  to  a«t 

as  such  at  the  election  of  directors  at  the  annual  meeting  of  the  stock- 
holders of ,  being  severally  duly  sworn,  does  each  for  himself 

•ay,  that  he  will  faithfully  execute  the  duties  of  inspector  at  such 
meeting  with  strict  impartiality,  and  according  to  the  best  of  hi§ 
ability. 

(Jurat) 


Tt> 


STOCK  CORPORATION  LA.W — FORMS. 

No.  4 
Form  of  Cortijlcatt  of  Intpecton. 


STATB  OF  NBW  YORK, 
County  of 


We,  the  inspectors  of  election  of ,  duly  appointed  to  act  at 

the  annual  meeting  of  the  stockholders  of  such  corporation,  do  hereby 
certify  aa  follows,  to  wit : 

Such  meeting  was  held  at  the  office  of  the  company  on  the day 

of ,  18 — ,  at o'clock,  in  the noon  of  that  day. 

Before  entering  \ipon  the  discharge  of  our  duties,  we  subscribed  and 
took  the  required  oath,  which  is  hereto  annexed,  marked  "Ex.  A,"  and 
hereby  made  a  part  of  this  certificate. 

At  such  meeting,  the  election  of  directors  to  manage  the 

affairs  for  the  ensuing  year  was  held. 

It  was  found,  upon  a  canvass  of  the  votes  cast  at  such  election, 

that votes,  representing shares  of  the  capital  stock,  had 

been  cast,  as  follows : 

For ,  of ,  votea 

_  <( 

« 

Whereupon  the  said  ,  ,  ,  ,  and , 

were  declared  by  us  duly  elected  directors  of  such  corporation  for  the 
ensuing  year. 

In  witness  whereof,  we  have  signed  and  acknowledged  this  certifi- 
cate, this day  of ,  1&— . 

(Jurat.)  , 


Inspector*. 
Acknowledgment  clause  aa  in  No.  1  of  General  Corporation  Law. 


No.  6. 

Section  80,     Annual  Report. 

STATB  OF  NBW  YORK,     ) 
Albany  City  and  County,  f 

The  Jones  Manufacturing  Company  of  Albany,  N.  Y.,  hereby^ 
makes  its  annual  report  as  of  the  1st  day  of  January,  18 . 

1.  The  capital  stock  of  said  company  is  $ ,  all  of  which  is 

issued  (if  not  all  issued  state  the  proportion  actually  issued). 

77 


STOCK  CORPORATION  LAW — FORKS. 

2.  The  amount  of  its  debts  does  not  exceed  the  sum  of  (insert 
amount)  dollars. 

8.  The  amount  of  its  asset*  is  at  least  the  sum  of  (insert  amount) 
dollars. 

4.  The  amount  of  its  stock  issued  for  property  purchased  is  (in- 
sert amount)  dollars. 

(After  the  sheets  containing  the  statements  above  referred  to,  here 
is  to  be  added). 

This  report,  made  by  said  corporation,  is  signed  by  its  president 
or  vice-president,  as  the  case  may  be. 

Dated  ALBANY,  January ,  18— k 

(Signed)  JOHN  JONES, 

(  President- 

i 

Sworn  to  before  me  this     ) 
— —  day  of  January,  18 — ,  / 

SARAH  DOE, 

Notary  Publie, 

Albany  Co. 

No.  6. 
Section  40  of  Stock  Corporation  Law.     Form  of  certificate  of  stock. 

No. .  No.  of  shares . 

Par  value  of  each  $ . 

The Company. 

This  is  to  certify  that is  the  owner  of  shares  of  the 

capital  stock  of  the company,  transferable  only  on  the  books  of 

the  company  by  the  holder  thereof,  in  person  or  by  attorney,  on  the 
surrender  of  this  certificate. 

In  witness  whereof,  the  said  company  has  caused  its  corporate  seal 
to  be  affixed  hereto  and  this  certificate  to  be  signed  by  its  president 
and  treasurer. 

.  Y. ,  18—.  »  PreridmL 

78 


STOCK  COHFORATIOW  LAW — FORMS. 

On  back  of  the  certificate,  a  blank  transfer,  in  following  form, 
should  be  printed. 

For  value  received, hereby  sell,  assign  and  transfer  unto 

shares  of  the  within  mentioned  stock,  and  do  hereby  constitute  and 

appoint  attorney  to  transfer  the  same  on  the  books  of  th» 

company. 

Witness  my  hand  and  seal,  this day  of ,  18—. 

Witness :  (Seal.) 


No,  7. 
Section  44,  et  $eq.     Form  of  certificate. 

SVATB  of  NBW  YORK,     "I  ^ 
County  of ,  J 

We, ,  chairman,  and ,  secretary,  of  a  special  meeting 

of  the  stockholders  of  the ,  *  a  domestic  corporation,  held  fof 

the  purpose  of  increasing  (or  reducing,  as  the  case  may  be),  its  capital 
stock,  do  hereby  certify  : 

A  notice  of  such  meeting,  of  which  the  following  is  a  true  copy,  wa« 

published  once  a  week,f  for  at  least    two  successive  weeks,  in , 

a  newspaper  in  the  county,  where  its  principal  business  office 
is  located,  and  a  copy  of  such  notice  was  served  personally  upon,  or 
duly  mailed,  postage  prepaid,  to  each  stockholder  or  member  of  the 
company,  at  his  post-office  address  at  least  two  weeks  before  the  meet, 
ing.  [or,  That  a  copy  of  such  notice  was  personally  served  at  least 
five  days  before  such  meeting  upon  the  following  named  stock, 
holders :] 

Notice  to  Stockholders. — A  special  meeting  of  the  stockholders  of 

the will  be  held,  on day  of ,  18 —  at o'clock 

—  M.  at  its  office,  at  No. sL  in  the of  N.  Y.,  for 

ihe  purpose  of  voting  upon  a  proposition  \  to  increase  (or  decrease, 

as  the  case  may  be)  its  capital  stock  from dollars,  consisting  of 

shares  of  the  par  value  of dollars  each,  to dollars,  to 

consist  of shares  of  the  par  value  of dollars  each. 

Dated,  etc.  


» 

Directors  owning  at  least  a  majority  of  stock." 

At  tbe  time  and  place  named  in  such  notice,  stockholders  of  such 
ooupauy,  representing  at  least  a  majority  of  all  its  shares  of  stock, 
appeared  in  person  or  by  proxy,  and  organized  by  choosing,  from 
their  number,  the  undersigned  ,  as  chairman,  and  ,  a* 

n 


STOCK  CORPORATION  LAW — FORMS. 

A  vote  of  those  present,  in  person  or  by  proxy,  was  taken  upon  the 
Following  resolution  :  "  Resolved,  that  the  capital  stock  of be  in- 
creased (or  reduced,  as  the  case  may  be),  from  its  present  amount  of 

dollars,  consisting  of  shares  of  the  par  value  of  - 

dollars  each,  to dollars,  to  consist  of  —      —  shares  of  the  par 

value  of dollars  each.  " 

Stockholders,  owning shares  of  stock,  being  at  least  a  major- 
ity of  the  stock  of  the  company,  voted  in  favor  of  such  resolution^ 

Stockholders,  owning shares  of  stock,  voted  against  its  adop. 

tion.     (In  case  of  no  opposing  vote,  then  substitute  for  the  last  clause 
the  following :) 

And  no  stockholder  voted  against  ittfadoption. 

Such  resolution  was  thereupon  declared  duly  adopted. 

The  amount  of  capital  of  the  corporation  actually  paid  in  is  

dollars. 

The  whole  amount  of  its  debts  and  liabilities  is  —   —  dollars. 

The  amount  of  the  increased  (or  reduced,  as  the  case  may  be)  capital 
stock  is dollars. 

In  witness  whereof,  we  have  made,  subscribed,  acknowledged  and 
verified  this  certificate,  this day  of ,  18 — . 

(Add  acknowledgment  clause  as  in  No.  1  of  General  Corporation 
Law.) 

STATB  or  NBW  YORK,      ) 
County  of ,  J 

,  chairman,  and ,  secretary  of  the  said  meeting,  being 

severally  duly  sworn,  does  each  for  himself  say  that  he  has  read  the 
foregoing  certificate,  subscribed  by  him,  and  knows  the  contents  thereof, 
and  that  the  same  is  true. 

(Jurat.)  » 


Form  of  proof  to  obtain  Comptroller's  approval. 
STATH  OP  NBW  YORK,      )  gg 
County  of ,  / 

,  secretary,  and ,  treasurer  of ,  being  severally 

duly  sworn,  does  each  for  himself  say  that  the  said is  secretary, 

and  the  said  is  treasurer  of ;  that  a  capital  of 

dollars  is  sufficient  for  the  proper  purposes  of  the  corporation,  and  is  in 
excess  of  its  debts  and  liabilities,  and  that  the  actual  market  value  of 
the  stock  before  reduction  was  lees  than  its  par  value. 

(Jurat)  » 


STOCK  CORPORATION  LAW  —  FORMS. 

No.  8. 

Section  54.     Certificate  as  to  Payment  of  Capital  Stock. 
BTATB  OP  NBW  YORK, 


Albany  City  and  County,  J 

We,  the  president  and  a  majority  of  the  directors  of  the  Jonas 
Manufacturing  Company,  a  corporation  duly  organized  under  the 
"  Business  Corporation  Law,"  of  New  York,  and  located  and  doing 
business  at  Albany  N.  Y.,  -  hereby  certify,  -  that  the  whole 
amount  of  capital  stock  of  said  corporation  has  been  paid  in. 
Dated,  ALBANY,  ,  189  —  . 

(Signed)  JOHN  JONBS,  President, 

RICHARD  ROB, 
JOHN  DOB, 
THOMAS  ROB,  Direotors. 


STATB  OF  NBW  YORK,     \ 
County  of ,  ) 

John  Jones,  Richard  Roe,  John  Doe  and  Thomas  Roe,  being  sev- 
erally duly  sworn,  does  each  for  himself  say,  that  the  said  John  Jones 
Ls  the  president  of  the  Jones  Manufacturing  Company,  and  the  said 
Richard  Roe,  John  Doe  and  Thomas  Roe  are  directors  of  said  com- 
pany, and  a  majority  thereof ;  that  he  has  read  the  foregoing  certifl- 
cate,  subscribed  by  him  and  knows  the  contents  thereof,  and  that  th« 
same  IB  true. 

(Jurat.)  


(Add  acknowledgment  clause  as  in  No.  1  of  General  Corporation 
Law.; 


81 


INDEX: 


A. 


SECTION. 

Action  against  company  within  what  time  brought,  to  hold  stockholder..  55 

to  invalidate  mortgage  for  insufficiency  of  consent  of  stockholders.  8 

for  making  false  statement  in  annual  report,  limitation  31 

Affairs  of  corporation  statement  of,  by  treasurer 52 

time  of  making  may  be  extended  by  court 5:1 

Administrator,  when  not  liable  as  stockholder 54 

Agents,  directors  to  appoint   27 

approval  of  assumption  of  debts  by,  on  reorganization 4 

Agreement   for   reorganization,  plan  of 4 

Alteration  or  extension  of  business   » 32 

Amended  certificate,  for  extension,  etc.,  of  business 32 

Amended  certificate,  for  purchase  or  exchange  of  stock,  etc.,  of  other  cor- 
poration   ...- 40 

Annual  report  of  stock  corporation,  provisions  covering 30 

waiver  by  creditor  for  failure  to  file   34 

notice  of  intention  to  hold  director  or  officer  liable  for  failure  to  file  34 

stock  issued  for  property,  report  to  so  state 42 

Application  to  replace  lost  stock  certificate   50,  5J 

to  supreme  court  for  appraisers  to  appraise  stock 33 

Appraisers  of  stock  of  owner  who  opposed  sale,  appointment  of 33 

manner  of  appraisers  procedure 33 

Assets,  annual  report  to  state  

final  distribution  of  on  dissolution 2J 

Assignment  by  banking,  insurance  and  railroad  corporations  forbidden ...  48 
Authorities  of  city,  town  or  village  holding  stock,  may  consent  to  re- 
organization  


Banking  cos.,  conveyance,  etc.,  by  restricted  43 

increase  or  reduction  of  capital,  liabilities 44 

not  to  make  assignment   48 

Banks,  consent  of  superintendent  to  change  number  of  directors  21 

Bondholders,  proxy  votes  by,  on  reorganization 

83 


INDEX. 

SECTION 

Bonds,  consideration  for  issue  of  limited  43 

may-  be  issued  according  to  plan  of  reorganization  4 

etc.,  of  corporations,  may  be  purchased  by  each  other 40 

etc.,  proportion  to  capital  stock 2  4 

of  domestic  corporation,  other  corporation  may  guarantee 40 

to  be  issued  for  fair  market  value  42 

unauthorized,  directors  liable   24 

Books,  neglect  or  refusal  concerning,  penalties  for   29 

opening  of,  for  subscription  to  stock  41 

stock  book  to  be  kept  in  this  state  by  foreign  corporation 53 

to  be  kept  for  corporation   29 

Borrowing  money,  power  to    

Business,  alteration  or  extension  of,  amended  certificate 32 

By-laws,  failure  to  adopt,  when  acts  of  first  year  directors  void 22 

C. 

Cancellation  of  forfeited  stock   43 

Canceled  stock,  to  be  deducted  from  capital 4;} 

Capital,  payment  as  dividend,  forbidden    23 

Capital  stock,  annual  report  to  state 30 

increase  or  reduction  of 44 

indebtedness  limited  by 24 

limit    on    reorganization ". 4 

meeting  to  increase  or  reduce,  notice  of 40 

proportion  of  indebtedness  to 2 

reduction  of,  when  forbidden 23 

return  of  after  reduction 45 

subscription   to 41 

to  be  made  good  after  cancellation 43 

Certificate  by  director  to  relieve  from  liability  for  failure  to  file  annual 

report    30 

of  stockholders  consent  to  mortgage 2 

if  false,  officers  etc.,  when  liable  to  creditors  etc 31 

surrendering  corporate  rights  contents  of 61 

of  partly  paid  stock,  provision  for 62 

for   reorganization,   contents   of 3 

of  increase  or  reduction  of  stock 46 

of  reduction  to  be  approved  by  comptroller 40 

to  provide  for  common  and  preferred  stock 47 

of  stock,  contents  of 40 

lost  or  destroyed,  new  issue  in  place  of 50,  51 

Change  of  number  of  directors,  proceedings  in  to  be  filed 21 

Change  of  place  of  business 50 

City  authorities,  assent  of,  to  reorganization 6 

Common   stock,  in   reorganization 4 

and  preferred  stock  may  be  issued 47 

issue    of 47 

Competition,   prevention   of,    forbidden 7 

84 


INDEX. 

SECTION 

Comptroller,  approval  of  reduction  of  capital  stock 4<J 

Conduct  of  meeting  to  increase  or  reduce  stock 4t$ 

Consent  of  stockholders  to  increase  or  reduce  capital  stock 4<i 

to  transfer  of  stock,  when  refused 20 

,of  stockholders  to  mortgage  property 2 

to  plan  of  agreement  on  reorganization I 

of  stockholders  to  increase  or  decrease  of  directors 21 

of  bank  superintendent  and  insurance  superintendent  do 21 

of  stockholders  to  sale  of  franchise,  property,  etc 3'J 

Consolidation  of  corporations,  transfer  of  stock,  etc 3,  4,  40 

Contribution  from  directors,  etc.,  to  the  one  who  pays  certain  debts 34 

Consideration  for  stock  and  bonds  is  money  labor  or  property 4:2 

Conversion   of   mortgage   debt  into   stock ^ 

Corporations    in    default,    transfers   by 48 

new,  formed  on  reorganization,  certificate 'A 

stock,  may  sell  franchise  property,  etc 33 

may  buy  and  exchange  each  others  stock 40 

may  guarantee  bonds  of  other  domestic  corporation 4<» 

Creditor,  damaged  by  false  report,  etc.,  officers  liable 31 

rights  of,  when  not  effected  by  action  to  set  aside  mortgage..  S 

waiver  by,  of  liability  of  officer,  etc.,  for  debt 34 

remedy   against  owner  of   stock  not   fully   paid 5 1 

Creditors,   when   transfer   of   stock,   valid   against 20 

D. 

Damages  caused  by  illegal  issues,  directors  liable  for 24 

Damages,   from  failure,  etc.,  to  keep,  etc.,  books,  who  liable 29 

Debts,  annual   report   to   state 30 

assumption  of,  by  new  corporation  on  reorganization 4 

excessive  and  unauthorized,  of  foreign  corporation,  liability  for..  60 

personal  liability  of  stockholders  for 54 

when  waived   by  creditor 34 

power    to    contract    given 2 

due  to  corporation,   stock  not  transferred  until  paid.... 26 

unauthorized,   directors   and   officers   liable 24 

must  be  in  judgment,  etc.,  before  action  against  stockholder 55 

Deed  of  trust,  sale  of  franchise,  etc.,  under •"> 

Default  in  payment  of  installment  due  for  stock 4:: 

Destroyed  stock,  reissue  in  place  of 50,  . 

Directors,  acts  of,  whom  void 22 

ceasing  to  be   stockholder 20 

policy  holders  of  insurance  corporation  eligible.. 

changing  number  of •* 

consent  of  to  convert  debt  secured  by  mortgage  into  stock . .  2 

holding  over   unlawfully,  when  acts  void 

election  of,  time  and  place  fixed  by  by-laws 

plurality  of  votes  required 

notice  of  election,  how  given 20 

85 


INDEX. 

SECTIO.X 

Directors     liability  for  failure  to  file  annual  report '•••> 

liability  for  false  reports,  etc -SI 

liability  for  illegal  loans 2  j 

liability   for   unauthorized   debts 24 

waiver   hy   creditor    of   liability    of   director 34 

notice  of  intention  to  hold,  personally  liable 34 

liability  of,  for  unlawful  transfers,  etc 48 

may  appoint  officers,  etc -~ 

may  refuse  consent  to  transfer  stock _'J 

may   extend   business    by   filing   amended    certificate ;!- 

of  stock  corporation,  one-fourth  to  be  elected  annually -*) 

of  stock  corporation,  selection  of 20 

must  be  a  stockholder  unless  otherwise  provided  by  certificate 

or   by-laws    20 

indebtedness  limited  by 24 

unauthorized   dividend  by,  liability   for '2.3 

when   can   not    act   as   election    inspectors 28 

and   officers,   general   provisions   as   to 20,  32 

to  meet  to  increase  or  reduce  stock 4"> 

Discounts,   for  stockholders   forbidden 23 

Dissolution,  distributing  assets  after 23 

by   incorporators    61 

voluntary 57 

Distribution,   final,   of   assets 23 

Dividends,  confined  to  surplus  profits 23 

on   partly   paid   stock G2 

unauthorized,    directors    liable    for 23 

"    by  foreign  corporation,  unauthorized,  liability  for 60 

preferences   in   payment   of 4 

Duties  of  officers,  etc.,  how  prescribed , 27 

E. 

Election,  inspectors  of,  provisions  governing 28 

of  directors,  notice  to  be  given 2'J 

failure  to  hold  for  want  of  by-laws — holding  over,  acts  void.  ..  22 

result    of,   certificate   to    be   filed 28 

unlawful    hindrances   to    an 22 

Employes,    directors    may    appoint 27 

Employes'  wages,  liability  of  stockholders  for 5  ! 

Evidence,    recital    in   mortgage   when   conclusive   and    when    presumptive 

evidence  of  authority  of  stockholders 8 

Exchange  of,  preferred  for  common  stock -17 

of  stock  by  municipality  on  reorganization 6 

of  stuck,  etc.,  by  corporations  with  each  other 40 

Executors,  when  liable  as  stockholders 54 

Exhibition  of  books  by  transfer  agent  of  foreign  corporation .1  '• 

Extension  of  business   by   filing  amended   certificate 3- 

Expenses  of  appraising  certain  stock  on  sale  of  franchise  and  property..  33 

86 


INDEX. 

F. 

SECTION 

False  certificates,  liability  of  officers  for 31 

public  notices,  liability  of  officers  for 31 

reports,    liability   of    officers    for 3 J 

Filing  certificate  of   stockholders   consent   to   mortgage "2 

false  certificate    31 

by    directors,   certificate   to   relieve   from    liability    for    failure    to 

file    annual    report 30 

certificate  of  extension  of  business 32 

of  common  and  preferred  stock 47 

of  change  of  principal  place  of  business 59 

Final  distribution  of  assets 23 

Financial   statement  to   stockholders 3'2 

time  of  making  may  be  extended  by  court ">2 

Foreclosure,  payment  of  mortgage  debt  by  stockholders 4!t 

for  failure  to  pay  principal  of  mortgage  or  interest H 

Foreign  corporation,  exhibition  of  books  by  transfer  agent  of 53 

purchase  by,  of  property  of  domestic  corporation . .  33 

must  keep  stock  book  in  this  state 53 

Forfeit  of  fifty  dollars  per  day  for  neglect  to  file  annual  report 36 

Forfeiture  of  stock  for  non-payment  of  subscription 43 

Franchises,  may  be  mortgaged 2 

sale  of  on  judgment,  reorganization 3 

sale  of  and  property,  consent  of   stockholders 33 

Full  paid  stock  issued  for  property,  etc.,  purchased 42 


G. 

General   powers   of   stock   corporations 1>       " 

Guaranteeing  bonds  of  another  corporation,  vote  of  directors 

Guardians,  when  liable  as   stockholders 54 

I. 

Illegal  issues  of  bonds,  etc.,  directors'  liability 24 

transfer  of  stock,  etc.,  of   foreign  corporation 

loans,  directors   liable   for 

Increase  of  capital  stock  to  meet  mortgage  debt  converted . . 

or  reduction  of   capital   stock 

notice   of   meeting   for 

of,  not  authorized  in  exchange  of  preferred  for  common  stock.  . 
Insolvent   corporation,   preferences   by,   forbidden .  . 

transfer  of  property  to  officers,  etc.,  forbidden .  . 
corporations  under  banking,  insurance  and  railroad  law  shall 

not  assign   

Inspection  of  stock  book  of  foreign  corporation,  in  this  state... 
Inspectors  of  election,  provisions  governing 

87 


INDEX. 

SECTION 

Inspectors  directors  or  officers  not  eligible 2S 

Insurance  corporations,  policy  holders  as  officers 27 

not  to  make  assignment <*S 

policy  holders  eligible  as  directors 20 

reduction  of  capital   stock 4-1 

Insurance,  consent  of  superintendent,  to  change  number  of  directors....  21 

Interest  on  mortgage,  default  in  payment,  foreclosure 5 

Issue   of   stock 40 

J. 

Judgment  creditors,  access  by,  to  stock  book 29 

Judgment,  etc.,  must  be  obtained  on  debt,  before  suit  against  stockholder.  5o 

L. 

Laborers,   stockholders   liable  for  debts   due 54 

Liabilities  of  corporation,  in  case  of  increase  or  reduction  of  capital  stock  44 

Liability  for  damages,  for  failure,  etc.,  to  keep,  etc.,  books 2D 

of  directors,  for  failure  to  file  annual  report 30,  31 

of  foreign  corporations 60 

of  officers,  for  false  certificates,  etc 31 

of  foreign  corporations 60 

of  directors,  for  illegal  loans  to  stockholders 25 

for  excessive  debts,  waiver  by  creditor , 34 

notice  by  creditor  of  intention  to  hold  director  liable  34 

for  unauthorized  bonds,   etc 24 

for    unauthorized    dividend 2tf 

of  director,  for  unlawful  transfers,  etc 48 

of  owner,  after  increase  or  reduction  of  capital   stock 44 

of  stockholder,  limitation  of «  55 

of  holders  of  stock  not  fully  paid  .1 ....,.,.  54 

of    foreign    corporations ,  60 

Limit  on  account  of  obligations  issued ,  2 

of  indebtedness  of  stock   corporation .. 24 

on  consideration  for  issue  of  stocks,  etc 42 

Limitation  of  action  for  false   report ,..  31 

of  action  for  stockholders'  liability .......,„„,  65 

of  stockholders'  liability , . . .  ,  6/5 

Loans,  illegal,  directors,  liable  for 25 

to  stockholders  by  foreign  corporation,  liability  for ...,.,  60 

Loss  caused  by  unauthorized  dividends,  directors  liable  for 23 

dividend,  directors  liable  for 25 

Lost  certificate  of  stock,   replacing 50,  51 

M. 

Meeting  to  increase  or  reduce  stock 46 

to  consent  to  mortgage 2 

Merger 5S 

88 


INDEX. 

SECTION 

Monied  corporations,  article  one  not  to  apply  to 1 

Monopolies    prohibited    7 

Mortgage  debt,  payment  by  stockholder 4y 

recital  in  mortgage  of  consent  of  stockholders,  when  conclusive 

and   when   presumptive   evidence 8 

of   property,   power   to 2 

sale   of   rights   and   franchises 5 

when  consent  of  stockholders   necessary 2 

Municipality   stockholder   may   consent   to   readjustment   and   formation 

of    new    corporation 6 

may   exchange    stock 8 

N. 

Necessaries  of  life,  combinations  affecting,  when  forbidden 7 

Neglect  to  make  proper  entries  on  books,  penalties  for 29 

to  keep   books   and  to  open   them   for  inspection,  penalty 29 

New  corporation,  when  liable  for  acts  of  receiver  of  old  corporation ....  5 

Note,  discounting  in  payment  of  installment  due  on  stock,  directors  liable  25 

Notice  of  election  of  directors  to  be  given 20 

of  meeting  to  increase  or  reduce  capital  stock 45 

to  guarantee  bonds  of  another  corporation 40 

of  proposal  to  change  number  of  directors Zl 

o. 

Oaths  of  inspectors  of  election 28 

Obligations  for  money  borrowed,  may  issue , . .  2 

Officers,  etc.,  transfers  to  prohibited 48 

of  corporation  holding  other  corporation  stock,  eligible  as  officers 

therein    40 

liability   for   false  certificates,  etc 31 

liability   for   illegal    loans 25 

waiver  by  creditor  of  liability  of  officer  for  debts 3-1 

notice  by  creditor  of  intention  to  hold  officer  liable  for  debts . .  34 

of   foreign   corporations,   liability   of 60 

what   may   be   appointed 27 

may  be  required  to  give  security  for  performance  of  duty 27 

Owner  of  stock — see  stockholder,  not  relieved  from  liability  by  reduction 

of  stock    44 

P. 

Partly  paid  'stock,  authorized  in  certificate 82 

Payment,   refusal  of   on  notes,  etc.,   property  not  to  be  transferred  to 

officers,   etc • 48 

for  stock  on  subscription  in  part 41 

for  stock  must  be  in  money,  labor  or  property 42 

for   stock,   time   of  payment 43 

89 


INDEX. 

SECTION 

Payment,  forfeiture  of,  for  non-payment 43 

for  laborers   wages,   preferred 48 

Penalty  for  failure  to  keep  books  or  give  access  to 29 

for  failure  to   make  the  proper  entry   in  books 29 

for   failure  to   file   annual   report 30 

for  false  report,  etc.,  by  officers,  etc 31 

for  neglect,  etc.,  of  agent  of  foreign  corporation 33 

for  neglect  to  furnish  financial  statement,  etc 52 

Personal  liability  of  directors 23,  24,  25,  48 

of  directors  for  unlawful  transfers,  preferences,  etc..  43 

of    stockholders   for   debts 54 

Place  of   business,  change  of 5!» 

Plan  of  reorganization,  contents  of 4 

to  be  filed,  etc 3 

Policyholders,  eligible  as  officers  of  insurance  corporation 27 

of   insurance  corporation   eligible  as   directors 20 

Powers  of  stock  corporation  to  borrow  and  mortgage 2 

Powers  of  reorganized  corporation 4 

Preferences  by   insolvent  corporation  forbidden 48 

for  laborers  wages  before  other  claims 48 

on  payment  of  dividends 4 

may  be  established  by  trustees  or  agents  in  favor  of  any  por- 
tion of  capital  stock  on  reorganization .' 4 

Preferred  creditor,  when  to  account 48 

stock,  on   reorganization 4 

stock,  issues   of 47 

President,  directors  to  appoint 27 

Principal  of  mortgage,  non-payment  of,  sale  for  default 5 

office,  change  of  place  of 5!) 

Proceedings  of  stockholders,  on  extension,  etc.,  of  business  to  be  filed.  ..  .  32 

to  increase  or  decrease  number  of  directors 21 

Prohibited  transfer  to  officers  or  stockholders 4S 

I'lv.perty.  franchises,  rights,  privileges,  etc.,  may  be  sold 33 

purchase   of  for   stock 42 

Public  notice  of  condition  of  corporation,  if  false,  officers,  etc.,  iiab'o ;;l 

Purchaser  in  good  faith,  when  protected 4,S 

on    foreclosure,   reorganization 3 

Purchase  mortgage,  when  limit  does  not  apply 2 

of  stock  of  one  corporation  by  another  corporation 40 

of  property,  payment  for  in  stock 4i! 

Q. 

Qualification   of   directors 20 

of  inspectors  of  election 23 

of  persons  as  reorganizes 3 

00 


INDEX. 

B. 

SECIIOJT 

Railroad,  increase  or  decrease  of  capital  stock 44,  46 

approval  of  railroad  commissioners  required 46 

Readjustment  of  corporations,  consent  of  municipality 0 

of  interests  of  creditors  etc.,  on  sale  of  franchise 4 

Receiver,  reorganization  not  to  affect 3 

misconduct  of  liability 5 

restrictions  as   to   suits  against 5 

to  collect   stock   subscriptions 43 

Reduction  of  capital  stock 44,  56 

amount  of  debts  not  to  exceed  reduced  capital  and  other  assets  44 

notice  of  meeting  for 45 

certificate  of,  to  be  approved  by  comptroller 45 

of  capital  stock,  when  forbidden 23 

Refusal  to  keep  books  and  afford  access  to,  penalty  for 29 

to  pay  its  notes  or  obligations,  property  not  to  be  transferred  to 

officers,   etc 48 

Re-issue  of   forfeited  stock 43 

Removal  of  officers  and  employes,  by  directors 27 

Reorganized  corporation,  power  of 4 

Reorganization,  after  sale  on  judgment,  etc 3 

liability  of,  for  receiver's  acts 5 

stockholder  may  assent  to 6 

Report,   annual,    provisions   as   to 30,  60 

stock  issued  for  property,  report  to  show 42 

by  foreign  corporation,  liability  for  when  false 60 

Restraint  of  trade,  forbidden 7 

Rights  and  liabilities  on  stock  and  of  stockholders 40,  o~> 


s. 

Sale  of  franchise  and  property  of  stock  corporation 33 

on    readjustment 4 

of  rights  and  franchises  under  mortgage 5 

Secretary,  directors  to  appoint 27 

Security  may  be  required  of  officers  and  employes 27 

-  Services,  liability  of  stockholder  for 54 

Shares  of  stock,  non-transferrable  until  all  calls  paid 40 

Statement,  financial,  to  stockholders 52 

time  of  making  and  extension  thereof 52 

Stock,  etc.,  of  corporations  may  be  purchased  by  each  other 40 

of  reorganized  corporation,  not  to  exceed  maximum  amount  men- 
tioned in  certificate  of  incorporation 4r 

exchange  of  by  municipality,  or  reorganization 6 

issued  for  property,  reports  to  so  state 42 

consideration   for  issue   of,   limited 42 

preferred  and  common  on  reorganization,  and  otherwise 4,  47 

91 


INDEX. 

SECTION 

Stock,  voting  on  may  be  regulated  on  reorganization 4 

acceptance  of,  for  settlement  of  debt  to  company 23 

subscription  to,  books   of 41 

ten  per  centum  of  amount  payable 41 

issued  for  property  purchased 42 

re-issue  of,  if  forfeited  for  non-payment 43 

cancellation  of,  if  not  sold  for  par 43 

division  of,  into  classes  on  sale  of  franchise J 

unpaid,  liability  of  holders  of,  to  creditors 51 

partly  paid,  provision  for  issuing , 62 

forfeiture   of 4;5 

increase  or  reduction  of  capital 44 

issue  and  transfer  of 40 

to  be  signed  by  president  etc.,  and  sealed 40 

lost  or  destroyed  certificate  of,  issue  in  place  of 50,  51 

not  to  be  issued  less  than  par  value 40 

reissue  of  forfeited 43 

subscriptions    to 41 

time  of  payment  of  subscription  to 41,  45 

transfer  entry  necessary  to  relieve  owner  of 2'.* 

transfer  of  by  stockholder  indebted,  etc 26 

no  share  shall  be  transferred  until  previous  calls  paid 40 

of  stock  one  corporation  to  another  corporation 40 

book,  contents  of,  etc : 2t> 

book,  where  and  when  open 26 

of  foreign  corporation,  stock  book  to  be  open  to  stockholders ....  53 

corporation,  annual   report   of 39 

corporation,  combination  of  forbidden 7 

corporation,  limit  of  indebtedness  of 24 

may  sell   franchise,  property  etc 33 

corporation,  powers  of 2 

Stockholders,  access  by  to  stock-book 29 

authorization  of,  to  extend  business 32 

owner  of,  not  relieved  from  liability  by  reduction 41 

may  inspect  stock  book  of  foreign  corporation 53 

liability  of,  to  creditors — unpaid  stock 54 

liability  of,  to  laborers,  etc.,  for  services 54 

executor,  etc.,  not  personally  liable  as  stockholder 54 

not  liable  for  debt  not  payable  in  two  years 55 

of   foreign   corporation,  liability  of 60 

consent   of   to   mortgage 2 

recital   in   mortgage   presumptive   evidence 3 

insufficiency  of   consent,  how  tested 8 

damaged  by  false  report,  etc.,  officers  liable 31 

evidence  of  debt  of,  not  to  be  received  by  stock  corporation.  25 

liability,   limitation   of 55 

loans    to,    forbidden 25 

personal  liability  of,  for  debts 54 

shall  not  assign  stock  in  contemplation  of   insolvency  of 

company    , 4S 

92 


INDEX. 

SECTION. 

Stockholdeas    to  vote  an  extension  of  business 

transfer  to,  prohibited 43 

when    liability    ceases 35 

when  may  assent  to  reorganization g 

Subrogation  of  stockholder  on  payment  of  mortgage  debt 44) 

of  director  or  officer  who  pays  corporation 34 

debt,  to  rights  of  creditor 

Subscription  to   stock 41 

Subscriptions  to  stock,  time  of  payment 41,  43 

Superintendent  of  banks,  to  consent  to  change  number  of  directors 21 

Superintendent  of  insurance,  to  consent  to  change  number  of  directors..  21 

Supreme  court  may  extend  time  for  making  financial  statement 62 

Supreme  court,  power  to  direct  sale,  etc 5 

Surrender  of  corporate  rights,  when 61 

Surplus  profit,  dividends  to  be  confined  to 23 

T. 

Time  of  payment  of  subscriptions  to  stoek 43 

Title,  act  to  be  known  by 1 

Town  authorities,  assent  of,  to  reorganization 6 

Trade,  unlawful  restraint  of,  forbidden 7 

Transfer  of  stock 40 

not  lawful  until  indebtedness  to  corporation  paid 2«5 

of  stock,  by  stockholder  indebted,  etc 20 

of  stock,  entry  of  necessary,  to  relieve  owner 29 

of  stock,  when   becomes   valid 2^ 

Transfer  to  officers  or  stockholders,  prohibited  in  certain  cases 48 

Treasurer,  directors  to  appoint 27 

Trustee's,  when  liable  as  stockholders .• 54 

approval  of  assumption  of  debts  by,  on  reorganization 4 

U. 

Unlawful  restraint  of  trade,  forbidden 7 

loans  to  stockholders  by  foreign  corporation,  liability  for. .  .^ .  GO 

Unpaid  stock,  liability  of  owner  ot  -to  creditors 54 

V. 

Vacancies,  primary  inspectors,  how  filled 28 

in  office  of  director,  how  filled 20 

in  appraisers  appointed  by  court  to  appraise  stock 33 

filling  of.  in  board  of  directors 20 

Verification  of  annual  report 30 

certificate  by  director,  as  to  annual  report 30 

Village  authorities,  assent  of,  to  reorganization 

Voting  to  change  principal  place  of  business  and  office 69 

93 


INDEX. 

SECTION 

Voting  on  exchange  of  preferred  for  common  stock 47 

on  stock  under  plan  of  reorganization 1 

of  stockholders  to  extend  business 32 

on  sale  of  franchise  and  property 33 

to  guarantee  bonds  of  another  corporation 40 

Void  acts  of  directors,  what  are 22 

transfer  of  stock,  in  contemplation  of  insolvency 48 

w. 

Wages,  etc.,  liability  of  stockholders  for 54 

Waiver  by  creditor  of  liability  of  officer,  etc.,  for  debt 34 


94 


THE  RAILROAD  LAW, 

BEING  CHAPTER  565  OF  THE  LAWS  OF  1890,  AS  AMENDED  AJ 
CHAPS.  302  AND  367  OF  THE  LAWS  OF  1891,  AND  BY  CHAP* 
300.  460,  534,  676  AND  700  OF  THE  LAWS  OF  1892. 

CHAPTER  XXXIX  OF  THE  GENERAL  LAW& 

THE  RAILKOAD  LAW. 

ARTICLH  1.  Organization;  general  powers;  location  (§§  1-21). 

2.  Constructs  in  ;  operation  ;  management  (§§  30-59). 

3.  Consolidation  ;  lease  ;  pal^  ;  reorganization  (§§  70-88). 

4.  Street  surface  railroads  (§§  90-110). 

5.  Other  railroads  in  cities  and  counties  (§§  120-142). 

6.  Board  of  railroad  commissioners  (§§  150-171). 

ARTICLE  I. 

ORGANIZATION,  GENERAL  POWERS,  LOCATION. 

SECTION    1.  Short  title. 

2.  Incorporation. 

3.  Supplemental  certificate. 

4.  Additional  powers  conferred. 

1.  Entry  upon  lands  for  purpose  of  survey. 

2.  Acquisition  of  real  property. 

3.  Construction  of  road. 

4.  Intersection  of  streams,  highways,  plank-roads,  turnpikes  and 

canals. 

5.  Intersection  of  other  railroads. 

6.  Buildings  and  stations. 

7.  Transportation  of  persons  and  property. 

8.  Time  and  manner  of  transportation. 

9.  Purchase  of  lands  and  stock  in  other  states. 

5.  When  corporate  powers  to  cease. 

6.  Location  of  route. 

7.  Acquisition  of  title  to  real  property. 

8.  Ra'lroads  through  public  lands. 

9.  Railroads  through  Indian  lands. 

10.  Railroads  through  Chautauqua  assembly,  ground?). 

11.  Intersection  of  highways,  additional  lands  for. 

12.  Intersection  of  other  railroads. 

13.  Change  of  route,  grade  or  terminus. 

14.  Construction  of  part  of  line  in  another  state. 

15.  Two  roads  having  the  same  location. 

16.  Tunnel  railroads. 

17.  Railroads  ri  foreign  countries. 

18    Additional  corporate  powers  of  such  road. 
19.  Location  of  principal  office  of  such  road. 

20  Individual    ioint-stock  association,  or  other  corporation  may    J*y 

down  and'maintain  railroad  tracks  in  certain  cases. 

21  Powers  of  electric  light  and  power  corporations. 

22.  Substituted  lines  in  case  of  eminent  domain. 

23.  Application. 


THE  RAILROAD  LAW. 

SECTION  1.  Short  title. — This  chapter  shall  be  known  as  the  rail- 
road law. 

§  2.  Incorporation. — Fifteen  or  more  persons  may  become  a  cor- 
poration, for  the  purpose  (1)  of  building,  maintaining  and  operat- 
ing a  railroad,  or  (2)  of  maintaining  and  operating  a  railroad 
already  built,  not  owned  by  a  railroad  corporation,  or  for  both  pur- 
poses, or  (3)  of  building,  maintaining  and  operating  a  railroad 
for  use  by  way  of  extension  or  branch  or  cut-off  of  any  railroad 
then  existing,  or  for  shortening  or  straightening  or  improving  the 
line  or  grad.;  of  such  railroad  or  of  any  part  thereof,  by  executing, 
acknowledging  and  filing  a  certificate,  in  which  shall  be  stated: 
Amended  by  ch.  727  of  1905.  In  effect  June  3, 1905 

1.  The  name  of  the  corporation. 

2.  The  number  of  years  it  is  to  continue. 

3.  The  kind  of  road  to  be  built  or  operated. 

4.  Its  length  and  termini. 

5.  The  name  of  each  county  in  which  any  part  of  it  is  to  be  located. 

6.  The  amount  of  capital  stock,  which  shall  not  be  less  than  ter 
thousand  dollars  for  every  mile  of  road  built,  or  proposed  to  be  built, 
except  a  narrow-gauge  road,  when  it   shall  not  be  less  than  three 
thousand  dollars  for  every  such  mile. 

7.  The  number  of  shares  into  which  the  capital  stock  is  to  be  divided. 

8.  If  the  capital  stock  is  to  consist  of  common  and  preferred  stock, 
the   amount  of  each  class  and  the  rights  and  privileges  of  the  latter 
over  the  former. 

9.  The  names  and  post-office  addresses  of  the  directors  of  the  corpora- 
tion, not  less  than  nine,  who  shall  manage  its  affairs  for  the  first  year. 

10.  The  place  where  its  principal  office  is  to  be  located. 

11.  If  a  street  surface  railroad,  the  names  and   description  of  the 
streets,  avenues  and  highways  in  which  the  road  is  to  be  constructed. 

12.  If  it  is  to  be  a  railway  corporation,  specified  in  article  five  of 
this  chapter,  the  statements  required  by  that  article  to  be  inserted  in 
the  certificate  of  incorporation. 

13.  The  name  and  post-office   address  of  each  subscriber  to  the  cer- 
tificate  and  the  number  of  shares  of  stock  he  agrees  to  takes. 

Such  certificate  shall  have  indorsed  thereon,  or  annexed  thereto,  to 
be  taken  as  a  part  thereof,  an  affidavit  of  at  least  three  of  such  directors, 
that  at  least  ten  per  cent  of  the  minimum  amount  of  capital  stock 
authorized  by  law  has  been  subscribed  thereto,  and  paid  iu  good  "faith 
MIK!  in  cash  to  the  directors  named  in  the  certificate-,  and  that  it.  is 
intended  in  good  faith  to  build,  maintain  and  operate  the  road  men- 
tioned therein.  In  case  of  a  railway  corporation  s]>iH-iii(Ml  in  article 
five  of  this  chapter,  the  affidavit  of  the  directors  shall  show  that  the 
full  Minoimt  of  such  capital  stock  has  been  iu  good  faith  subscribed, 
and  there  shall  be  annexed  to  the  certificate  of  incorporation  and  as  a 
part,  thereof  the  certificate  of  the  railroad  commissioners  showing  the 
organization  of  the  corporation  for  the  purposes  mentioned  in  the  cer- 
tificate. 


THE  RAILROAD  LAW. 

The  filing  of  every  certificate,  where  the  amount  of  stock  required  by 
this  section  has  not  been  in  good  faith  subscribed  and  paid  in  cash,  shall 

be  void. 
Amended  by  L.  1892,  ch.  676. 

§  3.  Supplemental  certificate.— If  the  names  and  places  of  residence 
of  the  directors  of  the  corporation  have  been  omitted  from  the  certifi- 
cate, when  executed  and  acknowledged,  and  thereafter  the  requisite 
number  of  directors  has  been  chosen  at  a  meeting  of  the  subscribers  to 
the  certificate,  a  supplemental  certificate,  containing  their  names  and 
places  of  residence,  may  be  filed  with  such  certificate  with  the  same 
force  and  effect  as  if  the  names  and  places  of  residence  of  the  directors 
had  been  originally  inserted  therein. 

§  4.  Additional  powers  conferred. — Subject  to  the  limitations  and 
requirements  of  this  chapter,  every  railroad  corporation,  in  addition  to 
the  powers  given  by  tine  general  and  stock  corporation  laws,  shall  have 
power. 

1.  Entry  upon  lands  for  purposes  of  survey. — To  cause  the  neces- 
sary examination  and  survey  for  its  proposed  railroad  to  be  made  for 
the  selection  of  the  most  advantageous  route;   and  for-  such  purpose, 
by  its  officers,  agents  or  servants,  to  enter  upon  any  lands  or  waters 
subject  to  liability  to  the  owner  for  all  damages  done. 

2.  Acquisition  of  real  property. — To  take  and  hold  such  voluntary 
grants  of  real  estate  and  other  property  as  shall  be  made  to  it  to  aid 
in  the  construction,  maintenance  and  accommodation  of  its  railroad 
and  to  acquire  by  condemnation  such  real  estate  and  property  as 

be  necessary  for  such   construction,  maintenance  and   a  - 
in   the   manner   provided   by   law,   but   the   real   property   acquired 
condemnation  shall  be  held  and  used  only  for  the  purposes  of  tii«- 
poration  during  the  continuance  of  the  corporate  existence. 

3.  Construction   of   road. — To   lay   out   its   road   not     exceeding    si 
rods  in  width,  and  to  construct  the  same;  and,  for  thepurpo?e  of  eir 

3 


THE  RAILROAD  LAW. 

tings  and  embankments,  to  take  such  additional  lands  as  may  be 
necessary  for  the  proper  construction  and  security  of  the  road;  and  to 
cut  down  any  standing  trees  that  may  be  in  danger  of  falling  on  the 
road,  upon  making  compensation  therefor. 

4.  Intersection   of  streams,     highway,     plankroads,     turnpikes    and 
canals. — To  construct  its  road  across,  along  or  upon  any  stream,  water- 
course, highway,  plankroad,  turnpike,   or  across   any  of  the  canals  of 
the  state,  which  the  route  of  its  road  shall  intersect  or  touch. 

5.  Intersection    of   other   railroads. — To     cross,     intersect,     join,     or 
unite  its  railroad  with  any  other  railroad  before  constructed,  at  any 
point  on  its  route  and  upon  the  ground  of  such  other  railroad  corpora- 
tion,  with   the   necessary   turnouts,   sidings,   switches,    and   other   con- 
veniences in  furtherance  of  the  objects  of  its  connection. 

6.  Buildings    and    stations. — To    erect  'and    maintain    all    necessary 
and  convenient  buildings,  stations,  fixtures  and  machinery  for  the  ac- 
commodation and  use  of  its  passengers,  freight  and  business.. 

7.  Transportation    of   persons    and    property.— To    take    and    convey 
persons  and  property  on  its  railroad  by  the  power  or  force  of  steam 
or  of  animals,  or  by  any  mechanical  power,  except  where  such  power 
is  specially  prescribed  in  this  chapter  and  to  receive  compensation  there- 
for. 

8.  Time  and  manner  of  transportation.— To  regulate  the  time  and 
manner  in  which  passengers  and  property  shall  be  transported,  and  the 
compensation  to  be  paid  therefor. 

9.  Purchase   of   lands   and   stock  in   other   states. — 'To   acquire   and 
dispose  of  any  real  property  in  any  other  state  through  which  any  part 
of  the  railroad  is  operated,  and  stock  in  any  foreign  corporation  owning 
lands   another  state   for   tftie   purpose   of   securing   for    such    railroad 
corporation  in  this  state  a  permanent  supply  of  fuel  for  its  use,  MI  id 
stock  of  corporations  in  this  state,  formed  for  the  purpose  of  erecting 
railway  depots. 


THE  RAILROAD  LAW. 

10.  Creation  of  mortgage.— From  time  to  time  to  borrow  8uch  sums 
of  money  as  may  be  necessary  for  completing  and  finishing  or  operating 
or  improving  its  railroad,  or  for  any  other  of  its  lawful  purposes  and  to 
issue  and  dispose  of  its  bonds  for  any  amount  so  borrowed,  and  to 
mortgage  its  property  and  franchises  to  secure  the  payment  of  any  debts 
contracted  by  the  company  for  the  purposes  aforesaid,  notwithstanding 
any  limitation  on  such  power  contained  in  any  general  or  special  law. 
But  no  mortgage  except  purchase  money  mortgages,  shall  be  issued 
by  any  railroad  corporation  under  this  or  any  other  law  without  the 
consent  of  the  board  of  railroad  commissioners  and  the  consent  of  the 
stockholders  owning  at  least  two-thirds  of  the  stock  of  the  corporation, 
which  consent  shall  be  in  writing,  and  shall  be  given  and  certified  and  be 
filed  and  recorded  in  the  office  of  the  clerk  or  register  of  the  county 
where  it  has  its  principal  place  of  business,  as  provided  in  section  two 
of  tihe  stock  corporation  law;  or  else  the  consent  of  the  board  of  rail- 
road commissioners  and  the  consent  by  their  votes  of  stockholders 
owning  at  least  two-thirds  of  the  stock  of  the  corporation,  which  is 
represented  and  voted  upon  in  person  or  by  proxy  at  a  meeting  called 
for  that  purpose  upon  a  notice  stating  the  time  place  and  object  of  the 
meeting,  served  at  least  three  weeks  previously  upon  each  stockholder 
personally,  or  mailed  to  him  at  his  post-office  address,  and  also  published 
at  least  once  a  week  for  three  weeks  successively  in  some  newspaper 
printed  in  tihe  city,  town  or  county  where  such  corporation  has'  its 
'principal  office;  and  a  certificate  of  the  vote  at  such  meeting,  shall  be 
signed  and  sworn  to  and  shall  be  filed  and  recorded  as  provided  by 
section  two  of  the  stock  corporation  law.  When  authorized  by  the  stock- 
holders consent  to  any  bonds  made  or  issued  under  this  section,  the 
directors,  under  such  regulations  as  they  may  adopt,  may  confer  on 
the  holder  of  any  such  bonds  the  right  to  convert  the  principal  thereof, 
after  two  and  not  more  than  twelve  years  from  the  date  of  the  bond, 
into  stock  of  the  corporation  at  a  price  fixed  by  the  board  of  directors, 
which  may  be  either  par  or  a  price  not  less  than  the  market  value 
thereof  at  the  date  of  such  consent  to  such  bonds;  and  if  the  capital 

4a 


THE  RAILROAD  LAW. 

:x  shall  not  be  sufficient  to  meet  Uhe  conversion  when  made,  the  board 
(..sectors  shall  autnorize  an  increase  of  capital  stock  sufficient  for 
iii   purpose. 

^u.jd    10  amended  by  ch.  482,  Laws  1900. 

cnitid    1;<  uniended  by  ch.  504  of  1902.     In  effect  April  10,  1902. 

oce  secliua  8,  Stock  Corporation  Law,  ante. 

§  5.  When  corporate  powers  to  cease.— If  any  domestic  railroad  cor- 
^oration  shall  not,  within  five  years  after  its  certificate  of  incorporation 
is  filed,  begin  the  construction  of  its  road  and  expend  thereon  ten  per 
centum  of  the  amount  of  its  capital,  or  shall  not  finish  its  road  and 
put  it  in  operation  in  4en  years  from  the  time  of  filing  such  certificate, 
its  corporate  existence  and  powers  shall  cease.  But  if  any  such  steam 
railroad  corporation  whose  certificate  of  incorporation  was  filed  since 
the  year  eighteen  hundred  and  eighty,  and  whose  road  as  designated  in 
such  certificate  is  wholly  within  one  county  and  not  more  than  ten 
miles  in  length,  has  acquired  the  real  property  necessary  for  its  road 
bed  by  purchase,  its  corporate  existence  and  powers  shall  not  be  deemed 
to  have  ceased  because  of  its  failure  to  comply  with  the  provisions  of 
this  article;  and  the  time  for  beginning  the  construction  of  its  road 
and  expending  thereon  ten  per  centum  of  its  capital,  is  extended  until 
thirteen  years  from  the  date  of  the  filing  of  such  certificate  and  the  time 
for  finishing  its  road  and  putting  it  in  operation,  is  extended  until 
eighteen  years  from  the  date  of  such  filing.  This  section  shall  not 
apply  to  any  street  surface  railroad  company  incorporated  prior  to 
July  first,  eighteen  hundred  and  ninety-five,  wthich  has  obtained  or 
become  the  owner  of  the  consents  of  the  local  authorities,  of  any  city 
of  the  first  or  second  class,  given  under  article  four  of  the  railroad 
law  to  the  use  of  public  streets,  avenues  or  highways  for  the  construc- 
tion and  operation  of  the  railroad  thereon. 

Amended  by  ch   508  of  1901.     In  effect  April  23,  1901. 

§  6.  Location  of  route. — Every  railroad  corporation,  except  a  street 
surface  railroad  corporation  and  an  elevated  railway  corporation,  before 

4b 


THE  RAILROAD  LAW. 

constructing  any  part  of  its  road  in  any  county  named  in  its  certificate 
of  incorporation,  or  instituting  any  proceedings  for  the  condemnation 
of  real  property  therein,  shall  make  a  map  and  profile  of  the  route 
adopted  by  it  in  such  county,  certified  by  the  president  and  engineer  of 
the  corporation,  or  a  majority  of  the  directors,  and  file  it  in  the  office  of 
the  clerk  of  the  county  in  which  the  road  is  to  be  made.  The  corpora- 
tion shall  give  written  notice  to  all  actual  occupants  of  the  lands  over 
which  the  route  of  the  road  is  so  designated,  and  which  has  not  been 
purchased  by  or  given  to  it,  of  the  time  and  place  such  map  and  profile 
were  filed,  and  that  such  route  passes  over  the  lands  of  such  occupant. 
Any  such  occupant  or  the  owner  of  the  land  aggrieved  by  the  proposed 
location,  may,  within  fifteen  days  after  receiving  such  notice,  give  ten 
days'  written  notice  to  such  corporation  and  to  the  owners  or  occupants 
of  lands  to  be  affected  by  any  proposed  alteration,  of  the  time  and  place 
of  an  application  to  a  justice  of  the  supreme  court,  in  the  judicial  dis- 
trict where  the  lands  are  situated,  by  petition  duly  verified,  for  the  ap- 
pointment of  commissioners  to  examine  the  route.  The  petition  shall 
state  the  objections  to  the  route  designated,  shall  designate  the  route  to 
which  it  is  proposed  to  alter  the  same,  and  shall  be  accompanied  with  a 
survey,  map  and  profile  of  the  route  designated  by  the  corporation,  and 
of  the  proposed  alteration  thereof,  and  copies  thereof  shall  be  served 
upon  the  corporation  and  such  owners  or  occupants  with  the  notice  of 
the  application.  The  justice  may,  upon  the  hearing  of  the  application, 
appoint  three  disinterested  persons,  one  of  whom  must  be  a  practical 
civil  engineer,  commissioners  to  examine  the  route  proposed  by  the  cor- 
poration, and  the  route  to  which  it  is  proposed  to  alter  the  same,  and 
after  hearing  the  parties,  to  affirm  the  route  originally  designated,  or 
adopt  the  proposed  alteration  thereof,  as  may  be  consistent  with  the  just 
rights  of  all  parties  and  the  public,  including  the  owners  or  occupants  of 
lands  upon  the  proposed  alteration;  but  no  alteration  of  the  route  shall 
be  made  except  by  the  concurrence  of  the  commissioner  who  is  a  practi- 
cal civil  engineer,  nor  which  will  cause  greater  damage  or  injury  to  lands 
or  materially  greater  length  of  road  than  the  route  designated  by  the 
corporation,  nor  which  shall  substantially  change  the  general  line  adopted 
by  the  corporation.  The  commissioners  shall,  within  thirty  days  after 
their  appointment,  make  and  certify  their  written  determination,  which 
with  the  petition,  map,  survey  and  profile,  and  any  testimony  taken  be- 
fore them  shall  be  immediately  filed  in  the  office  of  the  county  clerk  of 
the  county.  Within  twenty  days  after  such  filing,  any  party  may,  by 
written  notice  to  the  other  appeal  to  the  general  term  of  the  supreme 
court  from  the  decision  of  the  commissioners,  which  appeal  shall  be 
heard  and  decided  at  the  next  term  held  in  the  department  in  which  the 
lands  of  the  petitioners  or  any  of  them  are  situated,  for  which  the  same 
can  be  noticed,  according  to  the  rules  and  practice  of  the  court.  On  the 
hearing  of  such  appeal,  the  court  may  affirm  the  route  proposed  by  the 
corporation  or  may  adopt  that  proposed  by  the  petitioner.  The  commis- 
sioners shall  each  be  entitled  to  six  dollars  per  day  for  their  -services,  and 
to  their  reasonable  and  necessary  expenses,  to  be  paid  by  the  person  who 


THE  EAILROAD  LAW. 

applied  for  their  appointment.  If  the  route  of  the  road  as  designated 
by  the  corporation,  is  altered  by  the  commissioners,  or  by  the  order  of 
the  court,  the  corporation  shall  refund  to  the  petitioner  the  amount  so 
paid,  unless  the  decision  of  the  commissioners  is  reversed  upon  appea1. 
taken  by  the  corporation.  Xo  such  corporation  shall  institute  any  pro 
ceedings  for  the  condemnation  of  real  property  in  any  county  until  after 
the  expiration  of  fifteen  days  from  the  service  by  it  of  the  notice  re- 
quired by  this  section.  Every  such  corporation  shall  transmit  to  the 
board  of  railroad  commissioners  the  following  maps,  profiles  and  draw- 
ings exhibiting  the  characteristics  of  their  road,  to  wit:  A  map  or  maps 
showing  the  length  and  direction  of  each  straight  line;  the  length  and 
radius  of  each  curve;  the  point  of  crossing  of  each  town  and  county  line, 
and  the  length  of  line  of  each  town  and  county  accurately  determined 
.by  measurements  to  be  taken  after  the  completion  of  the  road. 

Whenever  any  part  of  the  road  is  completed  and  used,  such  maps 
and  profiles  of  such  completed  part  shall  be  filed  with  such  board  within 
three  months  after  the  completion  of  any  such  portion  and  ihe  com- 
mencement of  its  operation ;  and  when  any  additional  portion  of  the, 
road  shall  be  completed  and  used,  other  maps  shall  be  filed  within  the 
same  period  of  time,  showing  the  additional  par.s  so  completed.  If 
the  route,  as  located  upon  the  map  and  profile  filed  in  the  office  of 
at  y  county  clerk,  shall  have  been  changed,  it  shall  also  cause  a  copy 
of  the  map  and  profile  filed  in  the  office  of  the  railroad  commissioners, 
.so  far  as  it  may  relate  to  the  location  in  such  county,  to  be  filed  in  the 
office  of  the  county  clerk.  [Thus  amended  by  L.  1892,  ch.  676.] 

§  7.  Acquisition  of  title  to  real  property. — All  real  property,  re- 
quired by  any  railroad  corporation  for  the  purpose  of  its  incorporation, 
or  for  any  purpose  stated  in  the  railroad  law,  shall  be  deemed  to  be  required 
for  a  public  use,  and  may  be  acquired  by  such  corporation.  If  the  corpora- 
tion is  unable  to  agree  for  the  purchase  of  any  such  real,  property,  or  of 
any  right,  interest  or  easement  therein,  required  for  any  such  purpose,  or 
if  the  owner  thereof  shail  be  incapable  of  selling  the  same,  or  if  after 
diligent  search  and  inquiry  the  name  and  residence  of  any  such  owner  can 
not  be  ascertained,  it  shall  have  the  right  to  acquire  title  thereto  by  con- 
demnation. Every  railroad  corporation  shall  have  the  power  from  time  to 
time  to  make  and  use  upon  or  in  connection  with  any  railroad  either  owned 
or  operated  by  it,  such  additions,  betterments  and  facilities  as  may  be  neces- 
sary or  convenient  for  the  better  management,  maintenance  or  operation  of 
any  such  railroad,  and  shall  have  the  right  by  purchase  or  by  condemnation, 
to  acquire  any  real  property  required  therefor,  and  it  shall  also  have  such 
right  in  the  following  additional  cases: 

Am'd  by  ch.  727  of  1905.     In  effect  June  3,  1905. 

1.  ^Tiere   title   to   real   property   has   been   acquired,   or   attempted   to   be 
acquired,  and  has  been  found  to  be  invalid  or  defective. 

2.  Where  its  railroad  shall  be  lawfully  in  possession  of  a  lessee,  mortgagee, 
trustee   or  receiver,  and   additional   real  property   shall  be   required   for   the 
purpose   of  running  or  operating  such  railroad. 

3.  Where   it  shall   require   for  any  railroad   owned   or  operated   by   it   any 
further  rights  to  lands  or  the  use  of  lands  for  additional  main  tracks  or  for 
branches,  sidings,  switches  or  turnouts,  or  for  connections  or  for  cut-otFs.  or 
for  shortening   or   straightening   or   improving   the    line    or   grade   of   its    road 
or  any  part   thereof.     Also  where  it  shall  require  any  further  rights  in  lands 
or  the  use  of  lands  for  filling  any  structures  <-f  it-  ivad.  or  for  constructing, 
widening  or  completing  any   of  its  embankments  or  roadbeds,  by   means   of 
which   greater  safety  or  permanency   may   be   secured,  and   such   lands   shall 
be  contiguous  to  such  railroad  and   reasonably   accessible. 

Am'd  by  ch.   727   of   10C3.     In  c^eet   June  *3,   1905. 


THE  RAILROAD  LAW. 

reasonably  accessible  to  the  place  where  the  same  are  to  be  used  for 
such  purpose  or  purposes. 

4.  Where  it  shall  require  any  further  right  to  lands  or  to  the  usa  of 
lands  for  the  flow  of  water  occasioned  by  railroad  embankments  or 
.structures  now  in  use,  or  hereafter  rendered  necessary,  or  for  any 
other  purpose  necessary  for  the  operation  of  such  railroad,  or  for  any 
right  to  take  and  convey  water  from  any  spring,  pond,  creek  or  river 
to  such  railroad,  for  the  uses  and  purposes  thereof,  together  with  the 
right  to  build  or  lay  aqueducts  or  pipes  for  the  purpose  of  conveying 
such  water,  and  to  take  up,  relay  and  repair  the  same,  or  for  any 
right  of  way  required  for  carrying  away  or  diverting  any  water, 
stream  or  floods  from  such  railroad  for  the  purpose  of  protecting  its 
road  or  for  the  purpose  of  preventing  any  embankment,  excavation  or 
structure  of  such  railroad  from  injuring  the  property  of  any  person 
who  may  be  rendered  liable  to  injury  thereby. 

Waters  commonly  used  for  domestic,  agricultural  or  manufacturing 
purposes,  shall  not  be  taken  by  condemnation  to  such  an  extent  as  to 
injuriously  interfere  with  such  use  in  future.  No  railroad  corporation 
shall  have  the  right  to  acquire  by  condemnation  any  right  or  ease- 
ment in  or  to  any  real  property  owned  or  occupied  by  any  other  rail- 
road corporation,  except  the  right  to  intersect  or  cross  the  tracks  and 
lands  owned  or  held  for  right  of  way  by  such  other  corporation, 
without  appropriating  or  affecting  any  lands  owned  or  held  for  depots 
or  gravel-beds.  [Thus  amended  by  L.  1892,  cli.  676.] 

§  8.  Railroads  through  public  lands. — The  commissioners  of  the 
land  office  may  grant  to  any  domestic  railroad  corporation  any  land 
belonging  to  the  people  of  the  state,  except  the  reservation  at  Niagara 
and  the  Concourse  lands  on  Coney  Island,  which  may  be  required  for 
the  purposes  of  its  road  on  such  terms  as  may  be  agreed  upon  by  them ; 
or  such  corporation  may  acquire  title  thereto  by  condemnation;  and 
the  county  or  town  officers  having  charge  of  any  land  belonging  to  any 
county  or  town,  required  for  such  corporation  for  the  purpose  of  its 
road,  may  grant  such  land  to  the  corporation  for  such  compensation 
as  may  be  agreed  upon.  In  case  the  land  or  any  right,  interest  or 
easement  therein,  required  by  such  railroad  corporation  is  used  for 
prison  purposes  the  commissioners  of  the  land  office  may  grant  such 
land,  or  any  right,  interest  or  easement  therein,  provided  the  plans  of 
such  railroad  corporation  for  the  use  of  such  prison  lands,  or  such 
right,  interest  or  easement  therein,  have  the  approval  of  the  superin- 
tendent of  state  prisons. 
Amended  by  ch.  313  of  1904.  In  effect  April  13,  1904. 

§  9.  Railroads  through  Indian  lands. — Any  railroad  corporation 
may  contract  with  the  chiefs  of  any  nation  of  Indians,  over  whose 
lands  it  may  be  necessary  to  construct  its  railroad,  for  the  right  to 
make  such  road  upon  such  lands,  but  such  contract  shall  not  vest  in 
the  corporation  the  fee  to  the  land,  nor  the  right  to  occupy  the  same 
for  any  purposes  other  than  may  be  necessary  for  the  construction 
occupancy  and  maintenance  of  such  railroad,  and  such  contract  shall 


THE  EAILROAD  LAW. 

not  be  valid  or  effectual  until  it  shall  be  ratified  by  the  county  court 
of  the  county  where  the  land  shall  be  situated. 

§  10.  Railroads  through  Chautauqua  assembly  grounds. —  No 

railroad  corporation  shall  build,  construct  or  operate  any  railroad  in, 
upon,  over  or  through  the  grounds,  lands  or  premises  owned  by  the 
Chautauqua  assembly  corporation  in  the  town  and  county  of 
Chautauqua,  without  the  written  consent  of  a  majority  of  the  board 
of  trustees  of  such  assembly  corporation. 

§  11.  Intersection  of  highways  additional  lands  for. —  No  rail- 
road corporation  shall  erect  any  bridge  or  other  obstruction  across, 
iu  or  over  any  stream  or  lake,  navigated  by  steam  or  sail  boats  at. 
the  place  where  it  may  be  proposed  to  be  erected,  nor  shall  it  con- 
struct its  road  in,  upon  or  across  any  street  of  any  city  without  the 
assent  of  the  corporation  of  such  city,  nor  across,  upon  or  along  any 
highway  in  any  town  or  street  in  any  incorporated  village,  without 
the  order  of  the  supreme"  court  of  the  district  in  which  such  highway 
or  street  is  situated,  made  at  a  special  term  thereof,  after  at  least 
ten  days  written  notice  of  the  intention  to  make  application  for  such 
order  shall  have  been  given  to  the  commissioners  of  highways  of  such 
town,  or  board  of  trustees  of  the  village  in  which  such  highway  or  street 
is  situated.  Every  railroad  corporation  which  shall  build  its  road  along, 
across  or  upon  any  stream,  watercourse,  street,  highway,  plankroad  or 
turnpike,  which  the  route  of  its  road  shall  intersect  or  touch,  shall 
restore  the  stream  or  watercourse,  street,  highway  plank  road  and'turn- 
pike,  thus  intersected  or  touched,  to  its  former  state,  or  to  such  state  as 
not  to  have  unnecessarily  impaired  its  usefulness,  and  any  such  high- 
way, turnpike  or  plankroad  may  be  carried  by  it,  under  or  over  its 
track,  as  may  be  found  most  expedient.  Where  an  embankment  or 
cutting  shall  make  a  change  in  the  line  of  such  highway,  turnpike  or 
plankroad  desirable,  with  a  view  to  a  more  easy  ascent  or  descent,  it 
may  construct  such  highway,  turnpike  or  plankroad,  on  such  new  line 
as  its  directors  may  select,  and  may  take  additional  lands  therefor  by 
condemnation  if  necessary.  Such  lands  so  taken  shall  become  part  of 
such  intersecting  highway,  turnpike  or  plankroad,  and  shall  be  held 
in  the  same  manner  and  by  the  same  tenure  as  the  adjacent  parts  of 
the  highway,  turnpike  or  plankroad  are  held  for  highway  purposes. 
Every  railroad  corporation  shall  pay  all  damages  sustained  by  any 
turnpike  or  plankroad  corporation  in  consequence  of  its  crossing  or 
occupation  of  any  turnpike  or  plankroad,  and  in  case  of  inability  to 
agree  upon  the  amount  of  such  damages  it  may  acquire  the  right  to 
such  crossing  or  occupation  by  condemnation. 

§  12.  Intersection  of  other  railroads.—  Every  railroad  corpora- 

8 


THE  HAILKOAD  L.\\v. 

tion,  whose  road-bed  is  or  shall  be  intersected  by  any  new  railroad,  shall 
unite  with  the  corporation  owning  such  new  railroad  in  forming  the  neces- 
sary intersections  and  connections,  and  grant  the  requisite  facilities 
therefor.  If  the  two  corporations  can  not  agree  upon  the  amount  of  com- 
pensation to  be  made  therefor  or  upon  the  line  or  lines,  grade  or  grades, 
points  or  manner  of  such  intersections  and  connections,  the  same  shall  be 
ascertained  and  determined  by  commissioners,  one  of  whom  must  be  a 
practical  civil  engineer  and  surveyor,  to  be  appointed  by  the  court,  as 
is  provided  in  the  condemnation  law.  Such  commissioners  may 
determine  whether  the  crossing  or  crossings  of  any  railroad  before 
constructed  shall  be  beneath,  at,  or  above  the  existing  grade 
of  such  railroad,  and  upon  the  route  designated  upon  the  map  of  the 
corporation  seeking  the  crossing  or  otherwise.  All  railroad  corpora- 
tions whose  roads  are  or  shall  hereafter  be  so  crossed,  intersected  or 
joined,  shall  receive  from  each  other  and  forward  to  their  destination 
all  goods,  merchandise  and  other  property  intended  for  points  on  their 
respective  roads,  with  the  same  dispatch  as,  and  at  a  rate  of  freight 
not  exceeding  the  local  tariff  rate  charged  for  similar  goods,  merchan- 
dise and  other  property,  received  at  or  forwarded  from  the  same  point 
for  individuals  and  other  corporations.  [Thus  amended  by  L.  J 
ch.  ti7().J 

§  13.  Change  of  route,  grade  or  terminus.— Every  railroad  cor- 
poration, except  elevated  railway  corporations,  may,  by  a  vote  of  two- 
thirds  of  all  its  directors,  alter  or  change  the  route  or  any  part  of  the 
route  of  its  road  or  its  termini,  or  locate  such  route,  or  any  part 
thereof,  or  its  termini,  in  a  county  adjoining  any  county  named  in  its  cer- 
tificate of  incorporation,  if  it  shall  appear  to  them  that  the  line  can  be  im- 
proved thereby,  upon  making  and  filing  in  the  clerk's  office  of  the  proper 
county  a  survey,  map  and  certificate  of  such  alteration  or  change.  If  the 
same  is  made  after  the  corporation  has  commenced  grading  the  orginal 
route,  compensation  shall  be  made  to  all  persons  for  injury  done  by 
such  grading  to  any  lands  donated  to  the  corporation.  But  neither 
terminus  can  be  changed,  under  this  section,  to  any  other  county  than 
one  adjoining  that  in  which  it  was  previously  located ;  nor  can  the 
route  or  terminus  of  any  railroad  be  so  changed  in  any  town,  county 
or  municipal  corporation,  which  has  issued  bonds  and  taken  any  stock 
or  bonds  in  aid  of  the  construction  of  such  railroad  without  the  written 
consent  of  a  majority  of  the  tax  payers  appearing  upon  the  last 
assessment-roll  of  such  town,  county  or  municipal  corporation,  unless 
such  terminus,  after  the  change,  will  remain  in  the  same  village  or 
city  as  theretofore.  No  alteration  of  the  route  of  any  railroad  after 
its  construction  shall  be  made,  or  new  line  or  route  of  road  laid  out  or 
established,  as  provided  hi  this  section,  in  any  city  or  village,  unles* 

a 


THE  RAILROAD  LAW. 

approved  by  a  vote  of  two-thirds  of  the  common  council  of  the  city  or 
trustees  of  the  village.  Any  railroad  corporation  whose  road  as  located 
terminates  at  any  railroad  previously  constructed  or  located,  whereby 
communication  might  be  had  with  any  incorporated  city  of  the  state, 
may  amend  its  certificate  of  incorporation  so  as  to  terminate  its  road 
at  the  point  of  its  intersection  with  any  railroad  subsequently  located 
to  intersect  it,  and  thereby,  by  itself  or  its  connection,  afford  commu- 
nication with  such  city,  with  the  consent  of  the  stockholders  owning 
two-thirds  of  the  stock  of  the  corporation.  Any  railroad  corporation 
may,  by  a  vote  of  its  directors,  change  the  grade  of  any  part  of  its  road,  except  that 
in  the  city  of  Buffalo,  such  change  must  conform  to  the  general  plan  heretofore 
adopted  and  filed  by  the  grade  crossing  commissioners  of  said  city,  or  any  modi- 
fication thereof,  within  the  territory  covered  by  said  general  plan,  in  such  manner 
as  it  may  deem  necessary  to  avoid  accidents  and  facilitate  the  use  of  such  road  ; 
and  it  may  by  such  vote  alter  the  grade  of  its  road,  for  such  distance  and  in  such 
manner  as  it  may  deem  necessary,  on  each  or  either  side  of  the  place  where  the 
grade  of  its  road  has  been  changed  by  direction  of  the  superintendent  of  public 
works,  at  any  point  where  its  road  crosses  any  canal  or  canal  feeder,  except  that 
in  the  city  of  Buffalo  such  change  must  conform  to  the  general  plan  heretofore 
adopted  and  filed  by  the  grade  crossing  commissioners  of  said  city,  or  any  modi- 
fication thereof,  within  _the  territory  covered  by  said  general  plan.  The  superin- 
tendent of  public  works  shall  have  a  general  and  supervisory  power  over  that 
part  of  any  railroad  which  passes  over,  or  approaches  within  ten  rods  of  any 
canal  or  canal  feeder  belonging  to  the  state  so  far  a.»  may  be  necessary  to  preserve 
the  free  and  perfect  use  of  such  canals  or  feeders,  or  to  make  any  repairs,  im- 
provements or  alterations,  in  the  same.  Any  railroad  corporation  whose  tracks 
cross  any  of  the  canals  of  the  state,  and  the  grade  of  which  may  be  raised  by  di- 
rection of  the  superintendent  of  public  works,  with  the  assent  of  such  superin- 
tendent, may  lay  out  a  new  line  of  road  to  cross  such  canal  at  a  more  favorable 
grade,  and  may  extend  such  new  line  and  connect  the  same  with  any  other  line 
of  road  owned  by  such  corporation  upon  making  and  filing  in  the  clerk's  office  of 
the  proper  county  a  survey  map  and  certificate  of  such  new  or  altered  Hne.  No 
portion  of  the  track  of  any  railroad,  as  described  in  its  certificate  of  incorporation, 
shall  be  abandoned  under  this  section. 

Am'd  by  ch.  235  of  1897.     Took  effect  April  14,  1897. 

§  14.  Construction  of  part  of  line  in  another  state. — Any  rail- 
road corporation,  whose  proposed  railroad  is  to  be  built  between  any 
two  points  in  this  state,  may,  by  a  vote  of  two-thirds  of  all  its  directors, 
locate  and  construct  a  part  of  its  road  in  an  adjoining  state  ;  and  the 
sections  of  its  road  within  this  state  shall  be  deemed  a  connected  line, 
according  to  the  certificate  of  incorporation,  and  the  directors  may  re- 
duce the  capital  stock  of  the  corporation  to  such  amount  as  may  be 
deemed  proper,  but  not  less  than  ten  thousand  dollars  per  mile  for  the 
number  of  miles  of  road  to  be  actually  constructed  in  this  state. 

§  15.  Two  roads  having  the  same  location. — If  *wo  railroad  cor- 

10 


THE  RAILBOAD  LAW. 

poratioris  for  a  portion  of  their  respective  lines  embrace  the  same  loca- 
tion of  line,  or  if  their  lines  connect,  or  are  tributary  to  each  other,  such 
corporations  may  by  agreement  provide  for  the  construction  by  one  of 
them  of  so  much  of  such  line  as  is  common  to  both,  or  connects  with  its 
own  line,  and  for  the  manner  arid  terms  upon  which  the  business  threon 
shall  be  performed,  and  the  corporation  that  is  not  to  construct  the  p;irt 
of  the  line  which  is  common  to  both,  may  amend  its  certificate  of  incor- 
poration, and  terminate  its  line  at  the  point  of  intersection,  and  may 
reduce  its  capital  to  a  sum  riot  less  than  ten  thousand  dollars  for  each 
mile  of  road  proposed  to  be  constructed  in  such  amended  certificate. 

§16.  Tunnel  railroads.  — When,  according  to  the  route  and 

plan  for  the  building  of  its  road,  adopted  by  any  railroad  corporation 
including  corporations  organized  under  chapter  one  hundred  and 
forty  of  the  laws  of  eighteen  hundred  and  fifty,  and  the  acts  amenda- 
tory thereof,  and  supplementary  thereto,  it  shall  be  necessary  or 
proper  to  build  it  or  any  part  of  it  under  ground,  or  to  tunnel  or 
bridge  any  river  or  waters,  such  corporation  may  enter  upon,  acquire 
title  to  and  use  such  lands  under  water  and  uplands,  except  on  or 
along  any  canals  of  the  state,  as  shall  be  necessary  for  the  purpose 
herein  mentioned,  and  may  construct,  erect  and  secure  the  necessary 
foundations  and  other  structures  which  may  be  required  for  operat- 
ing and  maintaining  such  road,  or  connecting  the  same  with  another, 
and  to  acquire,  in  the  manner  provided  by  law,  such  land  or  rights 
or  easements  in  lands  along  its  route,  upon,  over  or  beneath  the  sur- 
face thereof  as  may  be  necessary  for  the  construction  of  its  road  and 
making  such  connections.  Where  such  road  runs  underneath  the 
ground,  at  such  depth  as  to  enable  the  corporation  to  tunnel  the 
same,  such  tunnel  shall  be  so  built  and  at  all  times  kept  in  such  con- 
dition as  to  make  the  surface  of  the  ground  above  the  same  and  in 
the  neighborhood  thereof  firm  and  safe  for  buildings  and  other 
erections  thereon,  and  if  surface  excavations  are  made  the  surface 
shall  be  restored  to  its  former  condition  as  soon  as  can  be  done, 
except  so  far  as  may  be  actually  required  for  ventilation -of  the 
tunnel  beneath  the  same  or  access  thereto.  Such  road  or  any  part 
of  it  may  be  built  within  the  limits  of  any  city  or  incorporated 
village  of  this  state,  and  run  by  means  of  a  tunnel*  underneath  any 
of  the  streets,  roads  or  public  places  thereof,  provided  such  corpora- 
tion shall  before  constructing  the  same  underneath  any  such  street 
road  or  public  place,  have  obtained  the  consent  of  the  owners  of 
one-half  in  value  of  the  property  bounded  on  the  line  of  snch  street, 
road  or  public  place,  and  the  consent  of  the  board  of  trustees  of  the 
village,  by  a  resolution  adopted  at  a  regular  meeting  and  entered  on 
the  records  of  the  board,  or  of  the  proper  authorities  of  the  city 
having  control  of  such  streets,  roads  or  public  places.  If  the  con- 

11 


HAILKOAD  LAW. 

sent  of  such  property  owners  can  not  be  obtained,  the  general  term 
of  the  supreme  court  in  the  district  in  which  said  city  or  village  or 
any  part  thereof  is  situated,  may  upon  application  appoint  three 
commissioners,  who  shall  determine,  after  a  hearing  of  all  parties 
interested,  whether  such  railroad  ought  to  be  built  underneath  such 
streets,  roads  or  public  places,  or  any  of  them,  and  in  what  manner 
the  same  may  be  so  built  with  the  least  damage  to  the  surface  and 
to  the  use  of  the  surface  by  the  public  and  the  determination  of  the 
commissioners  confirmed  by  the  court  may  be  taken  in  lieu  of  the 
consent  of  the  property  owners.  All  railroad  corporations  con- 
structing their  road  under  this  section  shall  be  subject  to  all  the 
provisions  of  this  chapter  applicable  thereto.  Any  other  railroad 
corporation  may  connect  its  road  therewith,  at  ench  points  or  places 
as  it  may  elect,  and  where  such  connections  shall  be  made  by  con- 
necting roads,  the  railroad  corporations  owning  such  roads  shal 
build,  at  their  joint  expense,  and  for  their  joint-  use,  such  passenger 
and  freight  depots,  and  other  accommodations  for  handling  pnssen>ic  i> 
and  freight,  as  may  be  required  for  the  convenience  of  the  public 
All  railroad  corporations,  constructing  any  tunnel  under  this  section 
shall  be  liable  to  any  person  or  corporation  for  all  damages  which 
may  be  sustained  by  reason  of  the  construction  of  such  tunnel. 
Whenever  it  shall  be  necessary  in  constructing  any  railroad  author- 
ized by  this  section  through  any  city  or  incorporated  village,  to  alter 
the  position  or  course  of  any  sewer,  or  water  or  gas  pipes,  it  shall  he 
done  at  the  expense  of  the  railroad  corporation  under  the  direction 
of  the  department  or  corporation  having  charge  thereof,  so  as  not  to 
interfere  with  such  work.  In  all  cases  the  uses  of  streets,  docks  and 
lands  beneath  which  such  railroad  is  constructed,  and  on  the  route 
thereof  and  the  right  of  way  beneath  the  same,  for  the  purpose  of 
such  railroad  shall  be  considered,  and  is  hereby  declared,  a  public  use, 
consistent  with  and  one  of  the  uses  for  which  streets  and  docks  are 
publicly  held.  No  public  park  or  square  in  any  city  or  village  of 
this  state  shall  be  used  or  occupied  by  any  corporation  for  any  of  the 
purposes  of  this  section,  and  every  road  constructed  hereunder  in  or 
through  any  such  street  or  public  place  shall  be  wholly  underground 
an  I  constructed  in  a  tunnel  and  not  otherwise,  but  nothing  in  this 
section  shall  operate  to  revive  any  charter  or  franchise  heretofore 
granted  by  or  in  the  city  of  Brooklyn.  This  act  does  not  authorize 
the  construction  of  any  bridge  over  or  across  the  East  or  North  rivers. 
Am'd  by  chaps.  676  and  702  of  1892  and  chap.  316  of  1893. 

§  17.  Railroads  in  foreign  countries'. — A  railroad  corporation 
may  be  formed  under  this  chapter  for  the  purpose  of  con- 
structing, maintaining  and  operating  in  any  foreign  country 
a  railroad  for  public  use  in  the  transportation  of  persons  and 
property,  or  for  the  purpose  of  maintaining  and  operating 
therein  any  railroad  already  constructed,  in  whole  or  in 
part,  To]-  the  like  public  use,  and  of  constructing,  maintain- 
ing and  operating  in  connection  therewith,  telegraph  lines 
and  lines  of  steamboats  or  sailing  vessels.  Any  corporation 
formed  for  the  construction  and  operation  of  a  railroad  by 
stationary  power,  may  construct,  operate  and  maintain  a 

12 


THE  RAILROAD  LAW 

railroad  in  any  other  state  or  country,  if  not  in  conflict  with 
the  laws  thereof,  but  the  assent  of  the  inventors  or  patentees 
of  the  method  of  propulsion  used  must  be  first  obtained  in 
the  same  manner  and  to  the  same  extent  as  would  be  neces- 
sary within  the  United  States.  The  term  "  foreign  "  in  this 
and  the  next  two  sections  of  this  law  shall  include  Porto 
Rico. 

Amended  by  ch.  676  of  1892. 

Amended  by  ch.  225  of  1902.    In  effect  March  26,  1902. 

§  18.  Additional  corporate  powers  of  snch  road.— The  corporation  six-fi- 
ned in  the  preceding  section  shall  have  the  following  additional  powers  : 

1.  To  expend  ir.oney  in  making  preliminary  examinations  and  surveys  for  its 
proposed  railroad,  telegraph  lines,  and  lines  of  steamboats  and  sailing  vessels,  ami 
hi  acquiring  from  foreign  countries,  nations  or  governments,  the  grants,  conces- 
sions and  privileges  herein  authorized. 

2.  To  take  and  receive  from  foreign  countries,  nations  and  governments,  sucli 
grants,  concessions  or  privileges,  for  the  construction,  acquisition,   maintenance 
and  operation  of  railroads,  telegraph  lines  and  vessels,  as  may  be  consistent  witli 
the  purposes  of  the  corporation,  and  as  may  be  granted  and  conceded  to  it,  and  to 
hold  the  same  under  such  restrictions  and  with  such  duties  and  liabilities  as  may 
be  fixed  by  the  laws  of  such  foreign  country,  nation  or  government,  or  as  may  be 
annexed  to  such  grants  or  concessions. 

3.  To  construct,  acquire,  maintain  and  operate  the  lines  of  railroad,  telegraph 
and  shipping  provided  for  by  its  certificate  of  incorporation,  and  to  take  and  hold 
by  purchase  or  by  voluntary  grant  such  real  estate  and  other  property  in  foreign 
countries  as  may  be  necessary  and  convenient  for  the  construction,  maintenance 
and  accommodation  of  such  lines,  and  to  sell,  convey,  mortgage  or  lease  such 
real  estate  or  other  property  ;  and  to  acquire  by  purchase  or  otherwise  any  railroad 
or  lines  of  telegraph  constructed  or  in  process  of  construction  in  any  foreign 
country,  and  any  granls,  concessions,  franchises,  rights,  privileges  and  immuni- 
ties relating  thereto,  and  to  issue  therefor  the  capital  stock  of  the  company  or  any 
part  thereof  at  such  valuation  or  valuations  and  on  such  terms  as  may  be  agreed 
upon,  and  to  mortgage  or  sell  and  convey  such  railroad  or  lines  of  telegraph  con- 
structed or  in  process  of  construction  in  any  foreign  country,  and  any  grants, 
concessions,  franchises,  rights,  privileges  and  immunities  relating  thereto,  or  any 
part  of  its  property  to  any  person  or  corporation  created  by  this  or  any  other  state 
or  foreign  government,  subject  to  the  laws  of  the  country  or  countries  where  such 
property  may  be,  and  the  power  of  sale  hereby  granted  shall  be  exercised  only  by 
a  majority  of  the  entire  board  of  directors  of  the  corporation,  with  the  written 
concurrence  of  the  holders  of  two-thirds  in  amount  of  its  capital  stock. 

4.  To  take  and  convey  persons  and  property  on  its  transportation  lines  by  the 
power  or  force  of  steam  or  of  animals,  or  by  mechanical  or  other  power,  and  re- 
ceive compensation  therefor  subject  to  the  laws  of  the.  place  or  country  where  the 
same  are  situated. 

5.  To  acquire  and  use  such  real  estate  and  other  property  in  this  state  as  may 
"be  necessary  in  the  conduct  of  its  business,  but  the  value  of  such  real  estate  held 
at  any  one  time  shall  not  exceed  the  sum  of  one  million  dollars. 

Am'd  by  ch.  504  of  1897. 

§19.  Location  of  principal  office  of  such  road.-Every  such  corporation 
shall  maintain  its  principal  office  within   this  state  and  shall  have  during  busi 
hours  an  olticer  or  agent  upon  whom  service  of  process  may  be  made,  and  : 
h  -Id  i'i  this  state  at  least  one  meeting  of  the  stockholders  in  each  year  f 
Chwwn    directors   which  shall  be  known  as  the  annual  meeting  and  be  heki  at 
t  *    I  ne  aaJ  place  fixed  by  the  by-laws  of  the  corporation.     [Thus  amended  by 
L    H^,  ch.  (376.  ] 

13 


RAILROAD  LAW. 

§  20.  Individual,  joint  stock  association,  or  other  corporation  may  lay 
down  and  maintain  railroad  tracks  in  certain  cases. — Any  individual,  joint 
stock  association  or  corporation,  engaged  in  any  lawful  business  in  this  state, 
rruy,  except  in  any  city  of  the  state,  lay  down  and  maintain  such  railroad  tracks 
on  or  across  any  street  or  highway,  not  exceeding  three  miles  in  length,  as  shall 
be  necessary  for  the  transaction  of  its  business,  and  to  connect  any  place  of  busi- 
ness owned  by  them  with  the  track  of  any  railroad  corporation,  and  render  such 
place  o*  business  more  accessible  to  the  public,  upon  obtaining  the  written  consent 
of  the  owners  of  all  the  lands  bounded  on  and  of  the  local  authorities  having  con- 
trol of  that  portion  of  the  street  or  highway,  upon  which  it  is  proposed  to  con- 
struct or  operate  such  railroad.  If  the  consent  of  such  property  owners  cannot 
be  obtained,  the  general  term  of  the  supreme  court  of  the  department  in  which 
such  railroad  is  to  be  constructed,  may,  upon  application,  appoint  three  commis- 
sioners, who  shall  determine,  after  a  hearing  of  all  parti'  s  interesteu.  whether  such 
railroad  ought  to  be  constructed  or  operated,  and  the  amount  of  damages,  if  any, 
to  be  paid  to  sucii  property  owners,  and  their  determination  confirmed  by  the 
court  may  be  taken  in  lieu  of  the  consent  of  the  property  owners.  But  no  such 
railroad  shall  be  so  located,  graded,  built  or  operated  as  to  interfere  with  or  ob- 
struc  the  trave'ed  part  of  any  highway,  or  its  use  as  a  highway,  or  the  use  of  any 
street  <>r  highway  intersecting  the  same. 

§21.  Any  corporation  whose  railroad  is  or  shall  be  not  longer  than  sixteen 
mill  s  and  is  or  shall  be  in  large  part  intended  for  or  used  in  summer  travel,  or  the 
convenience  of  suni'iier  sojourners,  need  not  operate  its  road  beyond  the  months 
of  .Line,  July,  August  and  September,  inclusive.  The  motive  power  may  be 
electricity.  Is  the  road  be  not  longer  'han  ti-n  miles,  snch  corporation  may  fix 
and  collect  fare  for  transporting  eacii  passenger,  together  with  ordinary  baggage, 
if  any,  not  to  exceed  fifteen  cents  f  i  ea  -h  mile  a  .d  fraction  thereof. 

Added  by  chap.  70>  of  1-03. 

§  21.  Powers  of  electric  light  and  power  corporations. — Whenever 
all  of  the  stockholders  of  any  domestic  electric  light  and  power  company,  incorpo- 
rated under  a  general  or  special  law,  having  not  less  than  five  stockholders,  and 
actually  engaged  in  carrying  on  business  in  this  state  shall  execute  and  file,  in 
the  offices  in  which  its  original  certificates  of  incorp  ration  are  filed,  an  amended 
certificate  of  incorporation,  complying  in  every  other  respect  than  as  to  the 
number  of  signers  and  directors,  who  shall  not  be  less  tl  an  five,  with  the  pro- 
visions of  the  railroad  law,  and  in  which  certificate  the  corporate  name  of  such 
corporation  shall  be  amended  by  adding  before  the  word  "  company,"  in  its  cor- 
porate name,  the  words,  "and  railroad,"  or  the  words,  "railroad  and  land," 
such  corporation  shall  have  the  right  to  build,  maintain  and  operate  by  electricity 
as  a  motive  power,  a  railroad  or  railroads,  not  exceeding  twenty -five  miles  In 
length,  and  within  that  distance  from  the  power  station,  and  shall  also  have  the  right 
to  acquire  the  property  and  franchises  of  a  railroad  company  or  companies  owning 
such  a  railroad  or  railroads,  already  constructed,  and  so  operated,  and  to  maintain 
and  operate  the  same,  provided  that  the  directors  of  such  railroad  company  or 
companies  and  all  of  its  or  their  stockholders  shall  first  have  assented  in  •writing 
to  the  transfer  of  the  property  and  franchises  of  such  railroad  company  or  com- 
panies, to  such  corporation  ;  in  which  event  and  by  the  filing  of  such  assent  of 
directors  and  stockholders  in  the  offices  where  the  certificates  of  incorporation  of 
the  railroad  company  or  companies  were  required  to  be  filed,  the  rights,  property 
and  franchises  of  such  railroad  company  or  companies  shall  be  transferred  to,  anil 
shall  vest  in  sr.ch  corporal  ion,  and  such  corporation  so  acquiring  st-ch  railroad  or 
railroads  shall  be  subject  to  all  the  provisions  of  chapter  thirty-nine  of  the  gnu-nil 
laws  with  respect  to  the  railroad  property  or  properties  and  franchises,  and  {-hall 
have  all  the  powers,  rights  and  privileges  conferred  by  said  chapter  upon  railroad 
corporations ;  provided  that  no  such  corporation  shall  construct  any  railroad 
which  is  in  whole  or  in  part  a  street  surface  railroad  without  complying  with  the 
provisions  of  article  four  of  the  railroad  law.  Upon  filing  such  certificate,  such 
corporation  shall  also  have  the  right  to  acquire  by  gift  or  by  voluntary  purchase 
and  sale  laud  not  exceeding  two  thousand  acres  along  the  line  of,  or  contiguous 
to,  said  railroad,  and  to  hold,  improve,  lease  or  sell  same.  Whenever  any  such 
corporation  shall  furnish  power  to  any  water  works  corporation  carrying  on  its 
business  in  the  county,  or  in  a  county  adjoining  that  in  which  the  operations  of 
such  corporation  are  carried  on,  it  may  acquire  the  shares  of  the  capital  stock  of 
said  water  works  corporation,  and,  if  such  corporation  shall  become  the  owner  of 
rl!  the  stock  of  said  waterworks  corporntion.it.  may,  on  executing  ar.d  filing  a 
c-rtificate  in  nccordar  ce  with  the  requirenic1  ts  of  section  fifty  eight  of  the  stock 
c  n-pnintions  law,  become  possessed  •  f  till  \\  ec  state,  rights,  property,  privileges  and 
f  ;;:.cl.ihcs  of  sue',  water-works  corporation,  with  the  effect  provided  in  said  section 

14 


THE  RAILROAD  LAW. 

fifty-eight.  This  section  shall  not  confer  any  powers  upon  any  corporation 
located  in  or  authorize  the  construction,  maintenance  or  operation  of  a  railroad  in  a 
city  of  the  first  or  second  class,  except  in  that  part  of  any  city  of  the  first  class 
•which  is  or  may  be  situate  in  a  county  of  less  than  one  hundred  thousand  iuhabit- 
nnts,  according  to  the  last  preceding  enumeration  for  the  national  census. 
Amended  by  ch.  731  of  1901.  In  effect  May  11,  1901. 

§  22.  Substituted  Hues  in  cases  of  eminent  domain.  —  Where  a  portion  of  a 
steam  surface  railroad  or  branch  thereof,  shall  be  s-pecifically  authorized  by  statute 
to  be  taken  for  any  other  public  use,  and  such  portion  lies  wholly  (Tutside  of  any 
city,  any  corporation  owuiug  or  operating  such  portion  may  locate,  as  provided  in 
section  six  of  this  article,  and  may  construct  and  operate,  in  substitution  for  such 
portion,  and  with  proper  connections  with  the  former  line,  a  new  line  of  steam 
surface  railroad,  wholly  or  partly  in  the  same  or  any  adjoining  county  and  wholly 
outside  of  any  city,  and  not  exceeding  twenty-five  miles  in  length,  in  the  manner, 
with  the  powers  and  subject  to  the  limitations  and  requirements  provided  in  this 
chapter  with  respect  to  steam  surface  railroads. 

Added  by  chap.  656  of  1898. 

§  23.  Section  24  of  the  stock  corporation  law  does  not  apply  to  a  railroad  cor- 
poration. 

Added  by  chap.  80  of  1896. 

ARTICLE  II. 

CONSTRUCTION,  OPERATION    AND    MANAGEMENT. 

SECTION  30.  Liability  of  corporation  to  employes  of  contractor. 

31.  Weight  of  rail. 

32.  Fences,  farm  crossings  and  cattle-guards. 

33.  KigH-boards  and  flagmen  at  crossings. 

34.  Notice  of  starting  trains  ;  no  preferences. 

35.  Accommodation  of  connecting  roads. 

36.  Locomotives  must  stop  at  grade  crossings. 

37.  Rates  of  fare. 

38.  Legislature  may  alter  or  reduce  fare. 

39.  Penalty  for  excessive  fare. 

40.  Passengers  refusing  to  pay  fare  may  be  ejected. 

41.  Extra  fare  for  sleeping  car. 

42.  Persons  employed  as  drivers  and  conductors. 
42a.  Liability  for  injuries  to  employees. 

43.  Conductors  and  employes  must  wear  badges. 

44.  Checks  for  baggage. 

45.  Penalties  for  injury  to  baggage. 

46.  Unclaimed  freight  and  baggage. 

47.  Tickets  and  checks  for  connecting  steamboats. 

48.  Rights  and  liabilities  as  common  carriers. 

49.  Duties  imposed  : 

1.  Switches. 

2.  Warning  signals. 

3.  Guard  posts. 

4.  Automatic  couplers. 

5.  Automatic  or  other  safety  brake. 

6.  Tools  in  passenger  cars. 

7.  Water. 

60.  Railroad  commissioners  may  approve  other  safeguard*. 

51.  Use  of  stoves  or  furnaces  prohibited. 

52.  Canada  thistles  to  be  cut. 

53.  Riiiing  on  platform  ;  walking  along  track. 

54.  Corporations  may  establish  ferries. 

55.  Certain  railroads  may  cease  operations  in  winter. 

56.  Mails. 

57.  Corporations  must  make  annual  report. 

58.  When  conductors  and  brakemen  may  be  policemen. 

59.  Hequisites  to  exercise  of  power  of  future  railroad  corporations. 

59a  Railroad  commissioners  may  certify  part  of  the  route  of  a  street  £  \r 
face  railroad.  Power  to  revoke  certificates,  street  surface  ttil 
road  extension. 

59b.  Revocation  of  certificate  and  consent. 

60-69    Grade  crossings. 


3  30.  Liability   of  corporation   to   employes  of  contractor. 

—An  action  may  be  maintained  against  any  railroad  corporation  b 


THE  RAILROAD  LAW. 

any  laborer  for  the  amount  due  him  from  any  contractor  for  the  con- 
struction of  any  part  of  its  road,  for  ninety  or  any  less  number  of  days' 
labor  performed  by  him  in  constructing  such  road,  if  within  twenty 
days  thereafter  a  written  notice  shall  have  been  served  upon  the  corpo- 
ration, and  the  action  shall  have  been  commenced  after  the  expiration 
of  ten  days  and  within  six  months  after  the  service  of  such  notice, 
which  shall  contain  a  statement  of  the  month  and  particular  days  upon 
which  the  labor  was  performed  and  for  which  it  was  unpaid,  the  price 
per  day,  the  amount  due,  the  name  of  the  contractor  from  whom  due, 
and  the  section  upon  which  performed,  and  shall  be  signed  by  the 
laborer  or  his  attorney  and  verified  by  him  to  the  effect  that  of  his  own 
knowledge  the  statements  contained  in  it  are  true.  The  notice  shall 
be  served  by  delivering  the  same  to  an  engineer,  agent  or  superin- 
tendent having  charge  of  the  section  of  the  road,  upon  which  the  labor 
"was  performed,  personally,  or  by  leaving  it  at  his  office  or  usual  place 
of  business  with  some  person  of  suitable  age  or  discretion ;  and  if  the 
corporation  has  no  such  agent,  engineer  or  superintendent,  or  in  case 
he  can  not  be  found  and  has  no  place  of  business  open,  service  may  in 
like  manner  be  made  on  any  officer  or  director  of  the  corporation. 

§31.  Weight  of  rail. — The  rail  used  in  the  construction  or  the 
relaying  of  the  track  of  every  railroad  hereafter  built  or  relaid  in 
whole  or  in  part  shall  be  of  iron  or  steel,  weighing  not  less  than 
twenty-five  pounds  to  the  lineal  yard  on  narrow  gauge  roads,  and  on 
ail  other  roads  not  less  than  fifty-six  pounds  to  the  lineal  yard  on 
grades  of  one  hundred  and  ten  feet  to  the  mile  or  under,  and  not  less 
than  seventy  pounds  to  the  lineal  yard  on  grades  of  over  one  hundred 
and  ten  feet  to  the  mile,  except  for  turnouts,  sidings  rnd  switches. 

§  32.  Fences,  farm  crossings  and  cattle-guards. — Every  rail- 
road,  corporation,  and  any  lessee  or  other  person  in  possession  of  its 
road,  shall,  before  the  lines  of  its  roads  are  opened  for  use,  and  so  soon 
as  it  has  acquired  the  right  of  way  for  its  roadway  erect  and  there- 
after maintain  fences  on  the  sides  of  its  road  of  height  and  strength 
sufficient  to  prevent  cattle,  horses,  sheep  and  hogs  from  going  upon  i:s 
road  from  the  adjacent  lands  with  farm  crossings  and  openings  \\iili 
gates  therein  at  such  farm  crossings  whenever  and  wherever  reasona- 
bly necessary  for  the  use  of  the  owners  and  occupants  of  the  adjoin- 
ing lands,  and  shall  construct  where  not  already  done,  and  hereafter 
maintain,  cattle-guards  at  all  road  crossings,  suitable  and  sufficient  10 
prevent  cattle,  horses,  sheep  and  hogs  from  going  upon  its  railroad. 
•So  long  as  such  fences  are  not  made,  or  are  not  in  good  repair,  the  cor- 
poration, its  lessee  or  other  person  in  possession  of  its  road,  shall  lie. 
liable  for  all  damages  done  by  their  agents  or  engines  or  cars  to  any 
domestic  animals  thereon.  When  made  and  in  good  repair,  they  shall 

16 


THE  RAILROAD  LAW. 

not  be  liable  for  any  such  damages,  unless  negligently  or  willfully 
done.  A  sufficient  post  and  wire  fence  of  requisite  height  shall  be 
deemed  a  lawful  fence  within  the  provisions  of  this  section,  but  barbed 
wire  shall  not  be  used  in  its  construction.  No  railroad  need  be  fenced, 
when  not  necessary  to  prevent  horses,  cattle,  sheep  and  hogs  from 
.going  upon  its  track  from  the  adjoining  lands.  Every  adjoining  land 
owner,  who,  or  whose  grantor,  has  received  compensation  for  fencing 
the  line  of  land  taken  for  a  railroad,  and  has  agreed  to  build  and 
maintain  a  lawful  fence  along  such  line,  shall  build  and  maintain  such 
fence.  If  such  owner,  his  heir  or  assign  shall  not  build  such  fence,  or 
if  built,  shall  neglect  to  maintain  the  same  during  the  period  of  thirty 
days  after  he  has  been  notified  so  to  do  by  the  railroad  corporation, 
such  corporation  shall  thereafter  build  and  maintain  such  fence,  and 
may  recover  of  the  person  neglecting  to  build  and  maintain  it  the 
expense  thereof.  And  when  such  railroad  shall  cross  timbered  or 
forest  lands,  the  company  shall  construct  and  maintain  suitable  and 
sufficient  crossings,  whenever  and  wherever  reasonably  necessary  to 
enable  the  respective  owners  of  said  lands,  to  transport  logs,  timber 
and  lumber  for  manufacture  or  sale,  or  for  banking  on  any  stream, 
to  be  floated  or  driven  down  the  same.  In  case  of  any  neglect  or  dis- 
pute the  supreme  court  may  by  mandamus  or  other  appropriate  pro- 
ceedings, compel  the  same,  and  also  fix  the  point  or  location  of  any 
such  crossing.  [Thus  amended  by  L.  1891,  ch.  367,  and  by  1892, 
ck  676.] 

§33.  Sign  boards  and  flagmen  at  crossings. —  Every  railroad 
corporation  shall  cause  a  sign  board  to  be  placed,  well  supported  and 
constantly  maintained,  at  every  crossing  where  its  road  is  crossed  by 
a  public  highway  at  grade.  Such  sign  board,  shall  be  of  a  shape  and 
design  to  be  approved  by  the  board  of  railroad  commissioners,  and 
shall  have  suitable  words  painted  thereon  to  warn  travelers  of  the 
existence  of  such  grade  crossing.  The  board  of  railroad  commis- 
sioners shall  have  power  to  prescribe  the  location  and  elevation  of 
such  sign  and  the  words  of  warning  thereon.  The  commission  may 
dispense  with  the  use  of  such  sign  boards  at  such  crossings  as  they 
may  designate  in  cities  and  villages.  At  any  point  where  a  railroad 
crosses  a  street,  highway,  turnpike,  plank-road,  or  traveled  way  at 
grade,  or  where  a  steam  railroad  crosses  a  horse  railroad  at  grade, 
and  the  corporation  owning  or  operating  such  railroad,  refuses,  upon 
request  of  the  local  authorities,  to  station  a  flagman  or  erect  gates, 
to  be  opened  and  closed  when  an  engine  or  train  passes,  the 
supreme  court  or  the  county  court,  may,  upon  the  application  of  the 
local  authorities  and  upon  ten  days'  notice  to  the  corporation,  order 
that  a  flagman  be  stationed  at  such  p-nnt,  or  that  gates  shall  be 
erected  thereat,  and  that  a  person  be  stationed  to  open  and  close  them 
when  an  engine  or  train  passes,  or  mav  make  such  other  order 
respecting  the  same  as  it  deerns  proper.  Whenever  the  crossing  by 

17 


THE  RAILROAD  LAW. 

a  railroad  at  grade  of  the  streets,  highways,  turnpike,  plank- roads, 
or  traveled  ways  of  any  village  or  city,  having  a  population  by  the 
last  state  or  federal  enumeration  of  less  than  fifty  thousand,  shall  be 
protected  by  gates  with  persons  to  open  and  close  the  same,  when  an 
engine  or  train  passes,  the  local  authorities  of  the  city  or  village 
shall  not  impose  any  limitation,  less  than  forty  miles  an  hour,  on  the 
rate  of  speed  at  which  such  engine  or  train  shall  be  run,  or  enforce 
any  existing  limitation  upon  such  rate  of  speed,  less  than  forty  miles 
an  hour. 
Amended  by  ch.  301  of  1901.  In  effect  April  8,  1901. 

§  84.  Notice  of  starting  trains  ;  no  preferences. —  Every  rail- 
road corporation  shall  start  and  run  ics  cars  for  the  transportation  of 
passengers  and  property  at  regular  times,  to  be  fixed  by  public  notice, 
and  shall  furnish  sufficient  accomodations  for  the  transportation  of  all 
passengers  and  property  which  shall  be  offered  for  transportation  at  the 
place  of  starting,  within  a  reasonable  time  previously  thereto,  and  at 
the  junctions  of  other  railroads,  and  at  the  usual  stopping  places 
established  for  receiving  avid  discharging  way  passengers  and  freight 
for  that  train ;  and  shall  take,  transport  and  discharge  such  passen- 
gers and  property  at,  from  and  to,  such  places,  on  the  due"  payment  of 
the  fave  or  freight  legally  authorized  therefor.  No  station  established 
by  any  railroad  corporation  for  the  reception  or  delivery  of  passengers 
or  property,  or  both,  shall  be  discontinued  without  the  consent  of  the 
board  of  railroad  commissioners  first  had  and  obtained.  No  prefer- 
ence for  the  transaction  of  the  business  of  a  common  carrier  upon  its 
cars,  or  in  its  depots  or  buildings,  or  upon  its  grounds,  shall  be 
granted  by  any  railroad  corporation  to  any  one  of  two  or  more  per- 
sons, associations  or  corporations  competing  in  the  same  business,  or 
in  the  business  of  transporting  property  for  themselves  or  others. 
Any  such  station  in  an  incorporate  village  shall  have  the  same  name 
as  the  village;  if  any  road  shall  have  more  than  one  such  station  in 
any  such  village,  the  station  nearest  the  geographical  center  thereof 
shall  have  such  name. 

Amended  1SS'2. 

§  35.  Accommodation  of  connecting  roads. —  Every  railroad 
corporation  whose  road,  at  or  near  the  same  place,  connects  with  or  is 
intersected  by  two  or  move  railroads  competing  for  its  business,  shall 
fairly  and  impartially  afford  1o  each  of  such  connecting  or  intersecting 
roails  equal  terms  of  accommodation,  privileges  and  facilities  in  tho 
transportation  of  cars,  passengers,  baggage  and  freight  over  and  upon 
its  roads,  and  over  and  upon  their  roads,  and  equal  facilities  in  the 
interchange  and  use  of  passenger,  baggage,  freight  and  other  cars 
required  to  accommodate  the  business  of  each  road,  and  in  furnishing 

18 


RAILROAD   LAW. 

passage  tickets  to  passengers  who  may  desire  to  make  a  continuous 
trip  over  any  part  of  its  roads  and  either  of  such  connecting  roads. 
The  board  of  railroad  commissioners  may,  upon  application  of  the 
corporation  owning  or  operating  either  of  the  connecting  or  intersect- 
ing roads,  and  upon  fourteen  days'  notice  to  the  corporation  owning  or 
operating  the  other  road,  prescribe  such  regulations  as  will  secure,  in 
their  judgment,  the  enjoyment  of  equal  privileges,  accommodations 
and  facilities  to  such  connecting  or  intersecting  roads  as  may  be 
required  to  accommodate  the  business  of  each  road,  and  the  terms  and 
conditions  upon  which  the  same  shall  be  afforded  to  each  road.  The 
decision  of  the  commissioners  shall  be  binding  on  the  parties  for  two 
years,  and  the  supreme  court  shall  have  power  to  compel  the  perform- 
ance thereof  by  attachment,  mandamus,  or  otherwise. 


§  36.  Locomotives  must  stop  at  grade  crossings.— All  trains  and  locomotives 
on  railroads  crossing  each  other  at  grade  shall  come  to  a  full  stop  before  crossing. 
not  less  than  two  hundred  or  more  than  eight  hundred  feet  from  the  crossing,  and 
shall  then  cross  only  when  the  way  is  clear  and  upon  a  signal  from  a  watchman 
stationed  at  the  crossing.  If  the  corporations  cannot  agree  as  to  the  expense  of 
the  watchman,  it  shall  be  determined  by  the  supreme  court,  upon  m  tion  thereto 
by  either  of  them.  If  the  corporations  disa:ree  as  to  the  precedence  of  trains,  the 
board  of  railroad  commissioners  may,  after  hearing,  upon  the  application  of  either 
corporation,  prescribe  rules  in  relation  thereto.  The  full  stop  and  crossing  on 
signal  may  be  discontinued  if  the  board  of  railroad  commissioners  shall  decide  it 
to  be  impracticable,  or  if,  with  the  approval  of  the  commissioners,  an  interlocking 
switch  and  signal  apparatus  is  adopted  and  put  in  operation  at  such  a  crossing. 
The  full  stop  and  crossing  on  signal  shall  not  be  required  in  depot  yards,  or  the 
approaches  thereto,  if  the  crossing  roads  are  under  lease  or  subject  to  the  same 
management  or  control  in  the  use  of  tracks.  An  engineer,  violating  the  foregoing 
provisions  of  this  section,  or  any  such  rule  of  the  railroad  commissioners,  sh  11  be 
liable  to  a  penalty  of  one  hundred  dollars;  and  any  corporation  or  person  operating 
the  railroad,  violating  any  of  such  provisions  or  rules  shall  be  liable  to  a  penalty 
of  five  hundred  dollars.  The  board  of  railroad  commissioners  may,  whenever  in 
its  judgment  the  public  safety  requires  the  erection  of  interlocking  switch  and 
signal  devices  at  points  where  steam  and  street  surface  railroads  intersect  at  grade, 
direct  the  erection  of  such  devices  and  apportion  the  expense  of  construction, 
operation  and  maintenance  thereof  between  the  companies  affected  thereby.  No 
railroad  corporation,  or  any  officer,  agent  or  employe  thereof,  shall  stop  its  cars, 
horses,  or  locomotives  upon  a  grade  crossing  of  a  railroad  of  another  corporation, 
for  the  purpose  of  receiving  or  delivering  passoneers  or  freight  or  other  purpose, 
and  any  person  or  corporation  violating  this  provision,  shall  be  liable  to  a  penalty 
of  two  hundred  and  fifty  dollars. 

[Am'd  Oh.  466  of  1898  ] 

§  37.   Rates  of  fare. — Every  railway  corporation  may  fix  nnd  coJ- 
lect  the  following  rates  of  fare  as  compensation  to  be  paid  for  trans 

19 


RAILROAD   LAW. 

porting  any  passenger  and  his  baggage,  not  exceeding  one  hundred 
and  iifry  pounds  in  weight,  for  each  mile  or  fraction  of  a  mile. 

1.  "Where  the  motive  power  is  rope  or  cable,  propelled  by  stationary 
p'jwer,  live  cents,  with  right  to  a  minimum  fare  often  cents;  but  if 
tho  railroad  is  less  than  two  miles  in  length,  and  overcomes  an  eleva- 
tion of  five  hundred  feet  or  more  to  the  mile,  five  cents  for  each  one 
hundred  feet  of  elevation  so  overcome,  and  the  same  rates  of  fare  if 
the  motive  power  is  locomotives,  furnished  with  cogs  working  into  cogs 
on  the  railway,  and  the  length  of  road  does  not  exceed  four  miles. 

2.  If  a  road,  not  incorporated  prior  to  May  15,  1879,  and  not  located 
in  the  counties  of  New  York  and  Kings,  or  within  the   limits  of  any 
incorporated  city,  and  not  more  than  twenty-five  miles  in  length,  five 
cents;  if  over  twenty-five  and  not  more  than  forty  miles,  four  cents; 
and  if  over  forty  miles,  three  cents.     Where  by  the  laying  down  of  a 
third  rail  upon  a  railroad  of  the   ordinary   gauge,  a   narrow-gauge 
track  is  created  and  used  for  the  transportation  of  passengers,  and  the 
length  of  road  does  not  exceed  six  miles,  including  any  connecting 
road  of  the  same  gauge,  such  railroad,  for  the  purpose  of  fare,  shall  be 
deemed  a  narrow-gauge  road. 

3.  If  its  railroad  overcomes  an  elevation  of  two  hundred  feet  to  the 
mile,  for  at  least  two  consecutive  miles,  and  does  not  excee'd  twenty 
miles  in  length,  ten  cents ;  if  it  overcomes  an  elevation  exceeding  three 
hundred  feet  to  the  mile,  within  a  distance  of  two  miles,  five  cents  for 
each  one  hundred  feet  of  elevation  ;  and  where  it  overcomes  an  eleva- 
tion of  more  than  one  thousand  feet,  within  a  distance  of  two  miles, 
seven  cents  for  each  one  hundred  feet  of  elevation  in  a  mile. 

4.  If  the  line  of  its  road  does  not  exceed  fifteen  miles  in  length,  and 
does  not  enter  or  traverse  the  limits  of  any  incorporated  city,  and  the 
distance  traveled  thereon  by  the  passenger  does  not  exceed  one  mile, 
five  cents. 

5.  In  all  other  cases,  three  cents  for  every  such  mile  or  fraction 
thereof,  with  a  right  to  a  minimum  single  fare  of  not  less  than  five 
cents. 

This  chapter  shall  not  be  construed  to  allow  any  rate  of  fare  for 
way  passengers  greater  than  two  cents  per  mile  to  be  charged 
or  taken  over  the  track  or  tracks  of  the  railroad  known  as  the 
New  York  central  railroad  company,  and  the  rate  of  fare  for  way 
passengers  over  the  track  or  tracks  of  such  company  shall  continue  to 
be  two  cents  per  mile,  and  no  more,  wherever  it  is  restricted  to  that 
of  fare,  nor  shall  any  consolidated  railroad  corporation  charge  a 
higher  rate  of  fare  per  passenger  per  mile,  upon  any  part  or  portion 
of  the  consolidated  line  than  was  allowed  by  law  to  be  charged  by 
each  existing  corporation  thereon  previously  to  such  consolidation. 

§  38.  Legislature  may  alter  or  reduce  fare. — The  legislature  may.  \\-l\i-n 
any  such  railroad  shall  be  open  for  use  from  time  to  time,  alter  or  reduce 
the  rate  of  freight,  fare  or  other  profits  upon  Midi  road  ;  but  Hie  sum;  shall  n<>t, 
without  the  consent  of  the  corporation.be  so  reduced -is  io  prodnco  with  such 
profits  less  then  ten  per  centum  per  annum  on  the  capital  actua.ly  expended; 

20 


RAILROAD  LAW. 

nor  unless  on  an  examination  of  the  amounts  received  and  expended,  to  be  made 
by  the  board  of  railroad  commissioners  they  shall  ascertain  that  the  net  incom 
derived  by  •  he  corporation  from  all  sources,  for  the  year  then  last  past  shall  have 
exceeded  an  annual  income  of  ten  per  centum  upon  the  capital  of  the  corporation 
actually  expended.  No  person  shall  issue  or  sell,  or  offer  to  sell  any  passage 
ticket  or  instrument  giving  or  purporting  to  give  any  right,  either  absolute  or 
upon  any  condition  or  contingency  to  a  passage  or  conveyance  upon  any  vessel  or 
railway  .ram,  or  for  a  berth  or  stateroom  in  any  vessel  unless  he  is  an  authorized 
agent  of  the  owners  or  consignees  of  such  vessel  or  of  the  company  running  such 
trains,  excepting  as  allowed  by  sections  six  hundred  and  twenty-two  and  six 
hundred  and  twenty-three  of  the  penal  rode  ;  aid  no  person  is  deemed  an  author- 
ized agent  of  such  owners,  consignees  or  compmy  unless  he  has  received  a  certifi- 
cate of  authority  in  writing  therefor,  specifying  the  name  of  the  company  line 
vessel  or  railway  lor  which  he  is  authorized  to  act  as  agent,  and  the  city  town  or 
village,  together  with  the  street  and  street  number  in  which  his  office  is  kent  for 
the  sale  of  tickets  ;  and  no  general  passenger  agent  or  other  officer  of  a  common 
carrier  whose  duty  it  may  be  to  supply  tickets  to  the  agents  of  said  comn 
earner  for  sale  to  the  public  shall  supply  tickets  for  sale  to  any  person  other 
than  such  regularly  authorized  agents  or  persons  specified  in  sections  six 
hundred  and  twenty-two  and  six  hundred  and  twenty-three  of  the  penal  code. 
Amended  by  ch.  639  of  190] .  In  effect  May  4,  1901 

§  39.  Penalty  for  excessive  fare.—  Any  railroad  corporation, 
which  shall  ask  or  receive  more  than  the  lawful  rate  of  fare,  unless 
such  overcharge  was  made  through  inadvertence  or  mistake,  not 
amounting  to  gross  negligence,  shall  forfeit  fifty  dollars,  to  be  recovered 
with  the  excess  so  receive  d  by  the  party  paying  the  same ;  but  no 
action  can  be  maintained  therefor,  unless  commenced  within  one  year 
after  the  cause  of  action  accrued. 

§  40.  Passenger  refusing  to  pay  fare  may  be  ejected.— If  any 

passenger  shall  refuse  to  pay  his  fare  the  conductor  of  the  train,  and 
the  servants  of  the  corporation,  may  put  him  and  his  baggage  out  of 
the  cars,  using  no  unnecessary  force,  on  stopping  the  train,  at  any 
usual  stopping  place,  or  near  any  dwelling-house,  as  the  conductor 
may  elect. 

§41.  Sleeping  and  parlor  cars.  — Any  railroad  corporation  may  contract 
with  any  person,  association  or  corporation  for  the  hauling  by  the  special  or 
regular  trains  of  said  railroad  corporation,  the  parlor,  drawing-room  or  sleep- 
ing car  or  cars  of  such  person,  association  or  corporation,  in  which  extra 
accommodations  shall  be  furnished,  for  which  said  person,  association  or  cor- 
poration furnishing  such  parlor,  drawing-room  or  sleeping  car  or  cars,  may 
charge  for  the  carriage  and  transportation  of  persons  and  property  therein,  a 
reasonable  compensation  for  such  extra  accommodation,  in  addition  to  the 
fare  and  charges  now  allowed  by  law  for  the  carriage  and  transportation  of 
passengers  and  property  in  the  ordinary  cars  of  said  railroad  corporation. 
But  said  railroad  corporation  so  contracting  shall  be  liable  in  the  same  \v;iy 
and  to  the  same  extent  as  if  the  said  car  or  cars  were  owned  by  it,  and  phall 
furnish  sufficient  ordinary  cars  for  the  reasonable  accommodation  of  the 
traveling  public. 

§  42.  Persons  employed  as  drivers,  conductors,  motormen  or  gripmen. — Any 
railroad  corporation  may  employ  any  inhabitant  of  the  State,  of  the  age  of 
twenty-one  years,  not  addicted  to  the  use  of  intoxicating  liquors,  as  a  car 
driver,  conductor,  motorman  or  gripman,  or  in  any  other  capacity,  if  fit  and 
competent  therefor.  All  applicants  for  positions  as  motormen  or  gripmen  on 
any  street  surface  railroad  in  this  State  shall  be  subjected  to  a  thorough  ex- 
amination by  the  officers  of  the  corporation  as  to  their  habits,  physical  ability 
and  intelligence.  If  this  examination  is  satisfactory,  the  applicant  shall  <  e 
placed  in  the  shop  or  power  house  where  lie  can  be  made  familiar  with  the 
power  and  machinery  he  is  about  to  control.  He  shall  then  be  placed  on  a 
car  with  an  instructor,  and  when  the  latter  is  satisfied  as  to  the  applicant's 
capability  for  the  position  of  motorman  or  gripman,  he  shall  so  certify  to  the 

21 


RAILROAD  LAW. 

officers  of  the  company,  and,  if  appointed,  the  applicant  shall  first 
serve  on  the  lines  of  least  travel.     Any  violation  of  the  provisions 

of  this  section  shall  be  a  misdemeanor. 

Am'd  by  chap.  513  of  1895.     Took  effect  May  2,  1895. 


§  42a.  Liability  for  injuries  to  employes.  —  In  all  actions 
against  a  railroad  corporation,  foreign  or  domestic,  doing  business 
in  this  state,  or  against  a  receiver  thereof,  for  personal  injury  to,  or 
death  resulting  from  personal  injury  of  any  person,  while  in  the 
employment  of  such  corporation,  or  receiver,  arising  from  the  neg- 
ligence of  such  corporation  or  receiver  or  of  any  of  its  or  his  officers 
or  employes,  every  employe,  or  his  legal  representatives,  shall  have 
the  same  rights  and  remedies  for  an  injury,  or  for  death,  suffered 
by  him,  from  the  act  or  omission  of  such  corporation  or  receiver  or 
of  its  or  his  officers  or  employes,  as  are  now  allowed  by  law,  and,  in 
addition  to  the  liability  now  existing  by  law,  it  shall  be  held  in 
such  actions  that  persons  engaged  in  the  service  of  any  railroad 
corporation,  foreign  or  domestic,  doing  business  in  this  state,  or  in 
the  service  of  a  receiver  thereof,  who  are  entrusted;  by"  such  corpor- 
ation or  receiver,  with  the  authority  of  superintendence,  control 
or  command  of  other  persons  in  the  employment  of  such  corpora- 
tion or  receiver,  or  with  the  authority  to  direct  or  control  any  otjier 
employe  in  the  performance  of  the  duty  of  such  employe,  or  who 
have,  as  a  part  of  their  duty,  for  the  time  being,  physical  control  or 
direction  of  the  movement  of  a  signal,  switch,  locomotive  engine, 
car,  train  or  telegraph  office,  are  vice  principles  of  such  corpor- 
ation or  receiver,  and  are  not  fellow  servants  of  such  injured  or 
deceased  employe.  If  an  employe,  engaged  in  the  service  of  any 
such  railroad  corporation,  or  of  a  receiver  thereof,  shall  receive 
any  injury  by  reason  of  any  defect  in  the  condition  of  the  ways, 
works,  machinery,  plant,  tools  or  implements,  or  of  any  car,  train, 
locomotive  or  attachment  thereto  belonging,  owned  or  operated,  or 
being  run  and  operated  by  such  corporation  or  receiver,  when  such 
defect  could  have  been  discovered  by  such  corporation  or  receiver, 
by  reasonable  and  proper  care,  tests  or  inspection,  such  corpora- 
tion or  receiver,  shall  be  deemed  to  have  had  knowledge  of  such 
defect  before  and  at  the  time  such  injury  is  sustained;  and  when 

22 


RAILROAD  LAW. 

the  fact  of  such  defect  shall  be  proved  upon  the  trial  of  any  action 
in  the  courts  of  this  state,  brought  by  such  employe  or  his  legal 
representatives,  against  any  such  railroad  corporation  or  receiver, 
on  account  of  such  injuries  so  received,  the  same  shall  be  prima 
facie  evidence  of  negligence  on  the  part  of  such  corporation  or  re- 
ceiver. This1  section  shall  not  affect  actions  or  causes  of  action  now 
existing;  and  no  contract,  receipt,  rule  or  regulation,  between  an 
employe  and  a  railroad  corporation  or  receiver,  shall  exempt  or 
limit  the  liability  of  such  corporation  or  receiver  from  the  pro- 
visions of  this  section. 

Added  by  ch.  657  of  1906.    In  effect  May  29,  1906. 


§  43. '  Conductors  and  employes  must  wear  badges. — Every 
conductor  and  employe  of  a  railroad  corporation  employed  in  a 
passenger  train,  or  at  stations  for  passengers,  shall  wear  upon 
his  hat  or  cap  a  badge,  which  shall  indicate  his  office  or  employ- 
ment, and  the  initial  letters  of  the  corporation  employing  him. 
No  conductor  or  collector  without  such  badge  shall  demand  or  re- 
ceive from  any  passenger  any  fare  or  ticket  or  exercise  any  of  the 
powers  of  his  employment.  No  officer  or  employe  without  such 
badge  shall  meddle  or  interfere  with  any  passenger,  his  baggage  or 

property. 

A  change  of  phraseology,  so  that  the  prohibition  against  the  "exercise  of  any 
of  the  powers  of  his  employment"  without  a  badge  is  limited,  as  it  was  before, 
to  the  conductor  or  collector. 


§  44.  Checks  for  baggage. — A  check,  made  of  some  proper  sub- 
stance of  convenient  size  and  form,  plainly  stamped -with  num- 
bers, and  furnished  with  a  convenient  strap  or  other  appendage  for 
attaching  to  baggage,  shall  be  affixed  to  every  piece  or  parcel  of 
baggage  when  taken  for  transportation  for  a  passenger  by  the 
agent  or  employe  of  such  corporation,  if  there  is  a  handle,  loop  or 
fixture  therefor  upon  the  piece  or  parcel  of  baggage,  and  a  dupli- 
cate thereof  given  to  the  passenger  or  person  delivering  the  same 
to  him.  If  such  check  be  refused  on  demand  the  corporation 
shall  pay  to  the  passenger  the  sum  of  ten  dollars,  and  no  fare  shall 

22a 


RAILEOAD  LAW. 

be  collected  or  received  from  him ;  and  if  he  shall  have  paid  hig 
fare  it  shall  be  refunded  to  him  by  the  conductor  in  charge  of  the 
train.  Such  baggage  shall  be  delivered,  without  unnecessary  de- 
lay, to  the  passenger  or  any  person  acting  in  his  behalf  at  the  place 
to  which  it  was  to  be  transported,  where  the  cars  usually  stop,  or 
at  any  other  regular  intermediate  stopping  place,  upon  notice  to 
the  baggage-master  in  charge  of  baggage  on  the  train,  of  not  less 
than  thirty  minutes,  upon  presentation  of  such  duplicate  check  to 
the  officer  or  agent  of  the  railroad  corporation,  or  of  any  corpora- 
tion, over  any  portion  of  whose  road  it  was  transported.  Bicycles 
are  hereby  declared  to  be  and  be. deemed  baggage  for  the  purposes 
of  this  article  and  shall  be  transported  as  baggage  for  passengers 
by  railroad  corporations  and  subject  to  the  same  liabilities,  and  no 
such  passenger  shall  be  required  to  crate,  cover  or  otherwise  protect 
any  such  bicycle ;  provided,  however,  that  a  railroad  corporation 
shall  not  be  required  to  transport,  under  the  provisions  of  this  act, 

more  than  one  bicycle  for  a  single  person. 
Am'd  by  ch.  333  of  1896. 
Am'd  by  ch.  388  of  1902.  In  effect  April  7,  1902. 


§  45.  Penalties  for  injuries  to  baggage. — Any  person,  whose 
duty  it  is  for  or  on  behalf  of  the  common  carrier  to  handle,  remove, 
or  care  for  the  baggage  of  passengers,  who  shall  recklessly  or  will- 
fully injure  or  destroy  any  trunk,  valise,  box,  bag,  pack- 
age or  parcel,  while  loading,  unloading,  transporting,  de- 
livering or  storing  the  same,  or  any  railroad  corpora- 
tion, which  shall  knowingly  keep  in  its  employment  any 
such  willful  or  reckless  person,  or  which  shall  permit  any 


22b 


RAILROAD  LANV. 

injury  or  destruction  of  such  property,  through  failure  to  provide  suffi- 
cient help  and  facilities  for  the  handling  thereof,  shall  pay  to  the  pur: y 
injured  thereby  the  sura  of  fifty  dollars,  in  addition  to  such  damage-. 

§  46.  Unclaimed  freight  and  baggage.— Every  railroad  or  other 
transportation  corporation,  doing  business  in  this  state,  which  t-h;.;i 
have  unclaimed  freight  or  baggage,  not  live  stock  or  perishable,  in  its 
possession  for  the  period  of  sixty  days  may  deliver  the  same  to  any 
warehouse  company,  or  person  or  persons  engaged  in  the  warehouse 
business,  within  this  state,  and  take  a  warehouse  receipt  for  the  storage 
thereof.     Upon  such  delivery  arid  upon  taking  such  warehouse  receipt, 
every  such  railroad  or  other  transportation  corporation  shall  be  dis- 
charged of  all  liability  in  respect  to  any  unclaimed  freight  or  baggage 
from  and  after  such  delivery.    At  any  time  within  two  years  after  sudi 
delivery,  such  railroad  or  other  transportation  corporation  shall  sur- 
render and  transfer  such  warehouse  receipt  to  the  owner  of  any  such 
unclaimed  freight  or  baggage  upon  demand,  and  upon  payment  of  all 
charges  and  expenses  for  transportation  and  storage  then  due,  if  a;:y, 
to  any  such  railroad  or  other  transportation  corporation.     In   case 
any  such  railroad  or  other  transportation  company  shall  have  had 
unclaimed  freight  or  baggage,   not  live  stock  or  perishable,  in  its 
possession  for  a  period  of  one  year  and  shall  not  have  delivered  the 
same,  to  a  warehouse  company  or  person  or  persons  engaged  in  the 
warehouse  business  as  above  provided,   then  such  railroad  or  other 
transportation  company  may  proceed  to  sell  the  same  at  public  auc- 
tion, and  out  of  the  proceeds  may   retain  the  charges  of  transporta- 
tion handling  and  storage  of  such  unclaimed  freight  or  baggage,  and 
the  expenses  of  advertising  and  sale  thereof ;  but  no  such  sale  shall 
be  made  until  the  expiration  of  four  weeks  from  the  first  publication 
of  notice  of  such  sale  to  be  published   weekly  in  a  newspaper  pub- 
lished in  or  nearest  the  town  or  city  to  which  such  unclaimed  freight 
or  baggage  was  consigned,  or  at  which  it  was  directed  to  be  left,  and 
also  at  the  town  or  city  where  such  sale  is  to  take  place;  and  said 
notice  shall  contain  a  general   description  of  such  unclaimed  freight 
or  baggage,  the  name  of  the  shipper  thereof  if  known,  and  a  state- 
ment of  the  consignment  thereof,  whether  to  a  designated  consignee 
or  to  order,  if  known,  or  the  place,  at  which  the  same  was  to  be  left, 
as  near  as  may  be  ;  and  the  expenses  incurred  for  advertising  shall 
be  a  lien  upon  such  unclaimed  freight  or  baggage  in  a  ratable  pro- 
portion, according  to  the  value  of  each  article,  package  or  parcel,  i 
more  than  one.    Such  railroad  or  other  transportation  company  shall 

23 


RAILROAD  LAW. 

make  an  entry  of  the  balance  of  the  proceeds  of  the  sale,  if  any,  of 
the  unclaimed  freight  or  baggage  consigned  to  the  same  consignee 
or  covered  by  each  consignment,  as  near  as  can  be  ascertaimed,  and 
at  any  time  within  five  years  thereafter,  shall  refund  any  surplus  so 
retained  to  the  owners  of  such  unclaimed  freight  or  baggage,  his  per- 
sonal representatives  or  assigns,  on  satisfactory  proof  of  such  owner- 
ship. In  case  such  balance  shall  not  be  claimed  by  the  rightful 
owner  within  five  years  after  the  sale  as  above  specified,  then  it 
shall  be  paid  to  the  county  treasurer,  for  the  use  of  the  county  poor 
of  the  county  where  the  sale  is  made. 

Unclaimed  live  stock  and  perishable  freight  or  baggage  may  be 
sold  by  any  such  railroad  or  other  transportation  corporation  with- 
out notice,  as  soon  as  it  can  be,  upon  the  best  terms  that  can  be  ob- 
tained. All  moneys  arising  from  the  sale  of  any  such  unclaimed  live 
stock,  perishable  freight  or  baggage,  after  deducting  therefrom  all 
charges  and  expenses  for  transportation,  storage,  keeping,  commis- 
sions for  selling  the  property,  and  any  amount  previously  paid 
for  its  loss  or  non-delivery,  shall  be  deposited  by  the  corporation 
making  such  sale  with  a  report  thereof,  and  proof  that  the  prop- 
erty was  live  stock  or  perishable  freight,  with  the  comptroller  for 
the  benefit  of  the  general  fund  of  the  state,  and  shall  be  held  bv  him 
in  trust  for  reclamation  by  the  person  or  persons  entitled  to  receive 

the  same. 
Ain'd  by  ch.  582  of  1899. 

§  47  Tickets  and  checks  for  connecting  steamboats. — The 
proprietors  of  any  line  of  steamboats,  terminating  or  stopping  for  pas- 
sengers at  any  place  where  a  railroad  corporation  has  a  depot  or  station, 
may  furnish  tickets  and  baggage  checks  to  such  corporation  for  the 
use  of  passengers,  traveling  over  its  road,  who  desire  to  connect  with 
such  line  of  boats  at  any  such  place,  and  the  railroad  corporation  sh.-iii 
sell  such  tickets  and  deliver  a  duplicate  of  one  of  such  checks  to  any 
such  passenger  applying  therefor,  and  shall  account  for  and  pa v  over 
to  the  proprietor  of  such  line  of  boats  all  moneys  received  by  it  for  the 
sale  of  such  tickets ;  and  any  such  railroad  corporation  may  furnish 

23a 


RAILROAD   LAW. 

tickets  and  checks  for  baggage  to  the  proprietors  of  any  such  line  of 
steamboats  for  the  use  of  passengers  traveling  over  any  part  of 
such  line  of  boats,  who  desire  to  connect  with  the  railroad  of  any 
such  corporation  at  any  such  place,  and  such  proprietors  shall  sell 
such  tickets  and  deliver  a  duplicate  of  one  of  such  checks  to  any 
such  passenger  applying  therefor,  and  shall  account  for  and  pay 
over  to  such  corporation  all  moneys  received  by  them  for  the  sale 
of  such  tickets.  No  greater  rate  of  fare  shall  be  charged  by  any 
railroad  corporation  to  any  such  passenger  for  the  distance  traveled 
over  its  road  than  is  charged  to  travelers  for  the  same  distance 
whose  trip  ends  at  the  place  where  connection  is  made  with  any 
such  line  of  boats,  and  no  greater  rate  of  fare  shall  be  charged  by 
the  proprietors  of  any  such  steamboat  line  to  any  such  passenger  for 
the  distance  traveled  over  its  line,  than  is  charged  to  travelers  for  the 
same  distance  whose  trip  ends  at  the  place  where  connection  is  made 
with  any  such  railroad.  Any  additional  cost  of  transfer  of  a  passenger 
or  his  baggage  from  railroad  depot  or  station  to  steamboat  landing,  or 
from  steamboat  landing  to  depot  or  station,  shall  be  borne  by  the  pas- 
senger or  the  proprietors  of  the  steamboat  line  or  the  railroad  cor- 
poration at  whose  instance  or  for  whose  benefit  such  transfer  is  made. 
Every  railroad  corporation  and  the  proprietors  of  any  line  of  steam- 
boats, their  agents  or  servants,  who  shall  neglect  or  refuse  to  sell 
tickets  or  furnish  a  check  to  any  passenger  applying  for  the  same, 
when  the  same  shall  have  been  furnished  to  them,  shall  pay  to 
such  passenger  the  sum  of  ten  dollars,  and  no  fare  or  toll  shall  be 
collected  from  him  for  riding  over  such  road  or  upon  such  boats, 
as  the  case  may  be  ;  and  in  addition  thereto  any  railroad  corporation 
go  neglecting  or  refusing,  shall  pay  the  proprietors  of  such  line  of 
boats  two  hundred  and  fifty  dollars  for  each  day  it  shall  so  neglect  or 
refuse  ;  and  the  proprietors  of  any  such  line  of  boats  so  neglecting  or 
refusing,  shall  pay  to  such  railroad  corporation  a  like  sum  for  each  day 
they  shall  so  neglect  or  refuse. 

Every  such  railroad  corporation  shall  also  receive  any  freight  which 
shall  be  delivered  at  any  station  on  the  line  of  its  road,  marked  to  go 
by  way  of  boat  or  any  particular  line  of  boats  from  any  station  on  its 
road  at  which  such  boat  or  line  of  boats  terminates  or  stops  for 
freight,  and  shall  transport  such  freight  with  all  convenient  speed  to 
such  station,  and  on  its  arrival  there  cause  the  proprietors  of  the 
steamboat  line  by  which  it  is  directed  to  be  sent,  or  their  agent,  to  be 
notified  of  such  arrival,  and  shall  deliver  such  freight  to  such  pro- 
prietors or  their  agent  with  the  bill  of  charges  thereon  due  such  rail- 
road corporation,  for  the  payment  of  which  charges  the  proprietor  or 
proprietors  of  such  steamboat  line  shall  be  responsible,  and  shall  ac- 
count for  and  pay  the  same  to  such  railroad  corporation  on  demand. 

24 


RAILROAD  LAW. 

The  railroad  corporation  shall  not  charge  for  the  transportation  of 
such  freight  over  its  road  any  greater  sum  pro  rata  than  it  charges 
for  carrying  the  same  kind  of  freight  the  same  distance  over  its  road, 
if  it  was  to  be  transported  by  such  corporation  by  rail  to  its  final 
destination,  or  to  the  terminus  of  the  road  of  such  corporation  in  case 
it  terminates  before  such  final  destination  is  reached.  Any  freight 
delivered  by  the  proprietors  of  any  steamboat  or  steamboat  line,  or 
their  authorized  agent,  at  any  station,  at  a  place  where  such  steam- 
boat or  steamboats  have  a  landing,  to  any  such  railroad  corporation, 
for  transportation  over  its  road  or  any  part  thereof,  shall  be  transported 
by  such  corporation  to  its  place  of  destination  for  the  same  price  pro 
rata  which  would  be  charged  for  the  same  kind  of  freight  the  same 
distance  over  its  road,  if  the  same  had  been  taken  on  at  the  point  of 
first  shipment  by  boat,  or  at  the  terminus  of  the  road  of  such  corpora- 
tion, in  case  it  does  not  extend  to  the  point  of  first  shipment. 

§  48.  Rights  and  liabilities  as  common  carriers. — Every  rail- 
road corporation  doing  business  in  this  state  shall  be  a  common  carrier. 
Any  one  of  two  or  more  corporations  owning  or  operating  connecting 
roads,  within  this  state,  or  partly  within  and  partly  without  the  state, 
shall  be  liable  as  a  common  carrier,  for  the  transportation"  of  passen- 
gers or  delivery  of  freight  received  by  it  to  be  transported  by  it  to 
any  place  on  the  line  of  a  connecting  road ;  and  if  it  shall  become 
liable  to  pay  any  sum  by  reason  of  neglect  or  misconduct  of  any  other 
corporation  it  may  collect  the  same  of  the  corporation  by  reason  of 
whose  neglect  or  misconduct  it  became  liable. 

§  49.  Switches  ;  warning  signals  ;  guard-posts  ;  automatic 
couplers  ;  automatic  or  other  safety  brake ;  tools  in  passenger 
car ;  -water. —  It  shall  be  the  duty  of  every  railroad  corporation 
•operating  its  road  by  steam  : 

1.  To  lay,  in  the  construction  of  new  and  in  the  renewal  of  existing 
switches,  upon  freight  or  passenger  main  line  tracks,  switches  on  the 
principal  of  either  the  so-called  Tyler,   Wharton,   Lorenze,   or  split- 
point  switch,  or  some  other  kind  of  safety  switch,  which  shall  prevent 
the  derailment  of  a  train,  when  such  switch  is  misplaced  or  a  switch 
interlocked  with  distant  signals. 

2.  To  erect  and   thereafter  maintain  such  suitable  warning  signals 
at  every  road,  bridge,  or  structure  which  crosses  the  railroad  above  the 
tracks,  where  such  warning  signals  may  be  necessary,  for  the  protec- 
tion of  employes  on  top  of  cars  from  injury. 

Subdivision  b  repealed. 
Repealed  by  chap.  r<4U  ot  1900.     In  effect  May  2,  1900. 


RAILROAD  LA\\. 

4.  To  use  upon  every  new  freight  car,  built  or  purchased  for  use,  couplers 
-which  can  be  coupled  and  uncoupled  automatically,  without  the  necessity  of 
having   a   person  guide   the   link,   lift   the   pin   by   hand,  or  go    between  tha 
ends  of  the  cars. 

5.  To  attach  to  every  car  used  for  passenger  transportation  an  automatic 
air-brake  or  other  form  of  safety-power  brake,  applied  from  the.   loconiotiv  •, 
excepting   cars    attached   to    freight    trains,    the    schedule    rate    of    speed   of 
which  does  not  exceed  twenty  miles  an   hour. 

G.  To  provide  each  closed  car  in  use  in  every  passenger  train  owned  or 
regularly  used  upon  a  railroad,  with  one  set  of  tools,  consisting  of  an  axe, 
sledge  hammer,  crowbar  and  hand  saw  and  such  other  or  additional  tools  as 
the  board  of  railroad  commissioners  may  require,  to  be  placed  where  directed 
by  the  board  of  railroad  commissioners. 

Am'd  by  ch.  521  of  1898. 

7.  To  provide,  in  each  passenger  car,  where  the  line  of  road  shall  exceed 
forty  continuous  miles  in  length,  a  suitable  receptacle  for  water,  with  a 
cup  or  drinking  utensil  attached  upon  or  near  such  receptacle,  and  to  keep 
such  receptacle,  while  the  car  is  in  use,  constantly  supplied  with  cool  v 

Every  corporation,  person  or  persons,  operating  such  railroad,  and  violating 
any  of  the  provisions  of  this  section,  except  subdivision  seven,  shall  be 
liable  to  a  penalty  of  one  hundred  dollars  for  each  offense,  and  the  further 
penalty  of  ten  dollars  for  each  day  that  it  shall  omit  or  neglect  to  comply 
with  any  of  such  provisions.  For  every  violation  of  the  provisions  of  the 
seventh  subdivision  of  this  section,  every  such  corporation  shall  be  liable 
to  a  penalty  of  twenty-five  dollars  for  each  offense. 

§  49-a.  Inspection  of  locomotive  boilers. — It  shall  be  the  duty  of  every 
railroad  corporation  operated  by  steam  power,  within  this  state,  and  of  the 
directors,  managers  or  superintendents  of  such  railroad  to  cause  thorough 
inspections  to  be  made  of  the  boilers  of  all  the  locomotives  which  shall  be 
used  by  such  corporation  or  corporations,  on  said  railroads.  Said  inspections 
shall  be  made,  at  least  once  every  three  months,  by  competent  and  qualified 
inspectors  of  boilers,  under  the  direction  and  superintendence  of  said  cor- 
poration or  corporations,  or  the  directors,  managers  or  superintendents  thereof. 
The  person  or  persons  who  shall  make  said  inspections,  shall  make  ana 
subscribe  his  name  to  a  written  or  printed  certificate  which  shall  contain 
tue  number  of  each  boiler  inspected,  the  date  of  its  inspection,  the  condi- 
tion of  the  boiler  inspected,  and  shall  cause  said  certificate  or  certificates  to 
be  filed  in  the  office  of  the  railroad  commissioners,  within  ten  days  after 
each  inspection  shall  be  made,  and  also  with  the  officer  or  employee  of  such 
railroad  having  immediate  charge  of  the  operation  of  such  locomotive.  It 
it  shall  be  ascertained  by  such  inspection  and  test,  or  otherwise,  that  any 
locomotive  boiler  is  unsafe  for  use,  the  same  shall  not  again  be  used  until 
it  shall  be  repaired,  and  made  safe.  A  certificate  of  a  boiler  inspector  to 
me  effect  that  the  same  is  in  a  safe  condition  for  use  shall  be  made  and 
filed  in  the  office  of  the  railroad  commissioners.  Every  corporation,  director, 
manager  or  superintendent  operating  such  railroad  and  violating  any  of  the 
provisions  of  this  section  shall  oe  liable  to  a  penalty,  to  be  paid  to  the 
people  of  the  state  of  New  York,  of  one  hundred  dollars  for  each  offense, 
and  the  further  penalty  of  one  hundred  dollars  for  each  uay  it  or  they  shall 
omit  or  negiecc  to  comply  wiih  said  provisions,  and  the  making  or  filing  of  a 
false  certificate  shall  be  a  misdemeanor.  Any  person,  upon  application  to  the 
secretary  of  said  board  of  railroad  commissioners  and  on  the  payment  of 
such  reasonable  fee  as  said  board  may  by  rule  fix,  shall  be  furnished  with 
a  copy  of  any  such  certificate. 

Added  by  ch.  611  of  1905.    In  effect  May  25,  1905. 

§  49-b  State  inspector  of  locomotive  boilers. — Within  twenty  days  after 
this  section  takes  effect,  the  state  railroad  commission  shall  appoint  a  com- 
petent person  as  inspector  of  locomotive  boilers,  who  shall  receive  a  com- 
pensation to  be  fixed  by  the  commission,  not  exceeding  three  thousand  dollars 
per  year.  Such  inspector  shall,  unuer  the  direction  of  the  commission,  inspect 
boiler--  or  locomotives  used  by  railroad  corporations  operating  steam  railroad* 
within  the  state,  and  ma\  cause  tne  same  to  be  tested  by  hydrostatic  test 
and  shall  perform  s'loh  other  duties  in  connection  with  the  inspection  and 
test  c>f  locomotive  boilers  as  the  commission  shall  direct.  But  this  section 
shall  not  relieve  any  railroad  corporation  from  the  duties  imposed  by  the 
pieceding  section 

Added  by  ch.  611  of  1905.     In  effect  May  25,  1905. 


RAILROAD  LAW. 

§  50.  Railroad  commissioners  may  approve  other  safeguards. — The  board 
of  railroad  commissioners  may,  on  the  application  of  any  railroad  corporation, 
authori/e  it  to  use  any  other  safeguard  or  device  approved  by  the  board,  in 
i.i'  any  safeguard  or  device  required  by  this  article,  which  shall  there- 
at UT  In-  used  in  lien  thereof,  and  the  same  penalties'  for  neglect  or  refusal 
to  use  the  same  shall  be  incurred  and  imposed  as  for  a  failure  to  use  the 
safeguard  or  device  hereinbefore  required,  in  lieu  of  which  the  same  is  to 
oi-  used.  ' 

§  51.  Use  of  stoves  or  furnaces  prohibited. — It  shall  not  be  lawful  for  any 
railroad  corporation,  operating  a  steam  railroad  in  this  state,  of  the  length 
of  fifty  miles  of  more,  excepting  foreign  railroad  corporations,  incorporated 
without  the  jurisdiction  of  the  United  States,  running  cars  upon  tracks  in 
this  state  for  a  distance  of  less  than  thirty  miles,  to  heat  its  passenger  cars, 
on  other  than  mixed  trains,  excepting  dining-room  cars,  by  any  stove  or 
furnace  kept  inside  the  car,  or  suspended  therefrom,  unless  in  case  of 
accident  or  other  emergency,  when  it  may  temporarily  use  such  stove  or 
furnace  with  necessary  fuel,  in  cars  which  have  been  equipped  with  apparatus 
to  heat  by  steam,  hot  water  or  hot  air  from  the  locomotive,  or  from  a  special 
car,  the  present  stove  may  be  retained  to  be  used  only  when  the  car  is 
standing  still,  and  no  stove  or  furnace  shall  be  used  in  a  dining-room  car, 
except  for  cooking  purposes,  and  of  pattern  and  kind  to  be  approved  -y  the 
railroad  commissioners.  This  section  shall  not  be  held  to  affect  or  interfere 
with  the  use  by  the  commissioners  of  fisheries  of  this  or  other  states,  or  of 
tin-  l"n!ted  States,  of  stoves  for  heating  or  cooking  or  boilers  for  hatching 
operations  in  their  fish  car  or  cars.  Any  person  or  corporation,  violating 
any  of  the  provisions  of  this  section,  shall  be  liable  to  a  penalty  of  one 
thousand  dollars,  and  to  the  further  penalty  of  one  hundred  dollars  for 
each  and  every  day  during  which  such  violation  shall  continue. 

Am'd  by  chap.  299  of  1896.     In  effect  April  17,  1896. 

§  52.  Canada  thistles  to  be  cut. — Every  railroad  corporation  doing  business 
within  this  state,  shall  cause  all  Canada  thistles,  white  and  yellow  daisies 
any  other  noxious  weeds  growing  on  any  lands  owned  or  occupied  by  it,  to 
bo  cut  down  twice  in  each  and  every  year,  once  between  the  fifteenth  day 
of  June  and  the  twenty-fifth  day  of  June,  and  once  between  the  fifteenth 
day  of  August  and  the  twenty-fifth  day  of  August.  If  any  such  corporation 
shall  neglect  to  cause  the  same  to  be  so  c\\t  down,  anv  person  may  cut  the 
same,  between  the  twenty-fifth  day  of  June  and  the  fifth  day  of  July 
inclusive,  and  between  the  twenty-fifth  day  of  August  and  the  fifth  day 
;-f  September  inclusive  in  each  year,  at  the  expense  of  the  corporation  on 
wnose  lands  the  same  shall  be  so  cut,  at  the  rate  of  three  dollars  per  day 
!''>!•  tne  time  occupied  in  cutting. 

§  53.  Riding  on  platform ;  walking  along  track.— No  railroad 
corporation  shall  be  liable  for  any  injury  to  any  passenger  while  on 
the  platform  of  a  car,  or  in  any  bag-gage,  wood  or  freight  car,  in  viola- 
ii,m  of  the  printed  regulations  of  the  corporation,  posted  up  at  the  time 
iii  a  conspicuous  place  inside  of  the  passenger  cars,  then  in  the  train, 
it  there  shall  be  at  the  time  sufficient  room  for  the  proper  accommoda- 
tion of  the  passenger  inside  such  passenger  coach.  No  person  other 
than  those  connected  with  or  employed  upon  the  railroad  shall  walk 
upon  or  along  its  track  or  tracks,  except  where  the  same  shall  be  laid 
across  or  along  streets  or  highways,  in  which  case  he  shall  not  walk 
upon  the  track  unless  necessary  to  cross  the  same.  Any  person  riding, 
leading  or  driving  any  horse  or  other  animal  upon  any  railroad,  or 
within  the  fences  and  guards  thereof,  other  than  at  a  farm  or  street  or 
forest  crossing,  without  the  consent  of  the  corporation,  shall  forfeit  to 
th-i  people  of  the  state  the  stun  of  ton  dollars,  and  pay  all  damages 
ained  thereby  to  the  party  aggrieved. 

L.  1850,  <:h.  140,  §  44. 

§  54.  Corporations  may  establish  ferries. — Any  steam  railroad 

corporation,  incorporated  under  the  laws  of  this  state,  with  a  terminus 
in  the  harbor  of  New  York,  may  purchase  or  lease  boats  propelled   by 

27 


RAILROAD   LAW. 

steam  or  otherwise,  and  operate  the  same  as  a  ferry  or  otherwise,  over 
the  waters  of  the  harbor  of  New  York,  but  this  section  shall  not,  be 
construed  t;>  aii'.-cf  the  rights  of  the  cities  of  2s<:\v  York  ami  Brooklyn. 

§  55.  Certain  railroads  may  cease  operation  in  winter. —  The 

directors  of  any  railroad  corporation  operating  a  railroad,  con.strii' •'•  <i 
and  used  principally  for  transporting  lumber  or  ores,  during  the  sum- 
i;:>-r  months,  or  for  summer  travel,  may,  by  a  resolution  duly  pa.----d 
at,  a  meeting  thereof,  apply  to  the  board  of  railroad  commissioners  for 
permission  to  cease  the  operation  of  their  road  during  the  winter  sea- 
BOII,  for  a  period,  not  exceeding  seven  months  in  any  one  year,  speci- 
fying the  date  of  such  suspension,  and  the  date  of  the  reopening 
thereof;  and  such  board  may,  in  their  discretion,  make  an  order 
granting  the  application  wholly  or  in  part,  and  thereupon  such  rail- 
road corporation  shall  be  relieved  of  the  duty  of  operating  its  road 
during  the  period  specified  in  the  order.  A  copy  of  such  order  shall 
be  posted  in  all  the  depots  and  at  the  termini  of  such  railroad,  and 
published  in  every  newspaper  in  each  town  in  any  part  of  which  such 
road  shall  be  constructed  at  least  four  weeks  prior  to  the  date  of  such 
suspension. 

§  56.  Mails. — Any  railroad  corporation  shall,  when  applied  to  by 
the  Postmaster-General,  convey  the  mails  of  the  United  States  on  its 
road,  and  in  case  such  corporation  and  the  Postmaster-General  shall 
not  agree  as  to  the  rate  of  transportation  therefor,  and  as  to  the  time, 
rate  of  speed,  manner  and  condition  of  carrying  the  same,  the  board 
of  railroad  commissioners  shall  fix  the  prices,  terms  and  conditions 
therefor,  after  giving  the  corporation  reasonable  opportunity  to  be 
heard.  Such  price  shall  be  not  less  for  carrying  such  mails  in  the  regu- 
lar passenger  trains  than  the  amount  which  such  corporation  would  re- 
ceive as  freight  on  a  like  weight  of  merchandise  transported  in  their 
merchandise  trains,  and  a  fair  compensation  for  the  post-office  car.  If 
the  Postmaster-General  shall  require  the  mail  to  be  carried  at  other 
hours,  or  at  higher  speed  than  the  passenger  trains  are  run,  the  cor- 
poral ion  shall  furui.-h  an  exira  train  for  the  mail,  and  be  allowed  an 
extra  compensation  for  the  expenses  and  wear  and  tear  thereof,  and  for. 
the  service  to  be  fixed  as  herein  provided. 

Every  railroad  corporation  refusing  or  neglecting  to  comply  with 
any  provision,  of  this  section  shall  forfeit  to  the  people  of  the  state  one 
hundred  dollars  for  every  day  such  neglect  or  refusal  continues. 

L.  1847,  ch.  21.'),  §  17. 

£  57.  Corporations  must  .make  annual  report. — Every  person 
or  corporation  owing,  leasing,  operating  or  in  possession  of  a  railroad, 
wholly  or  partly,  in  this  state,  shall  make  an  annual  report  to  the 

28 


RAILROAD   LAW. 

board  of  railroad  commissioners  of  its  operations  for  the  year  ending 
with  June  thirtieth,  and  of  its  condition  on  that  day  which  shall  be 
verified  by  the  oaths  of  the  president,  or  treasurer,  and  the  general 
manager,  or  acting  superintendent,  and  shall  be  filed  in  the  office  of 
such  board  on  or  before  September  first  in  each  year.  Every  such 
person  or  corporation  shall  make  quarterly  and  further  reports  to  such 
board  in  the  form  and  within  the  time  prescribed  by  it.  Such  board 
may  in  its  discretion  change  the  date  of  the  annual  report  and  of 
filing  the  same,  but  the  length  of  time  between  the  date  of  the  annual 
report  and  the  filing  of  the  same  shall  not  be  less  than  herein  pre- 
scribed. Any  person  or  railroad  corporation  which  shall  neglect  to 
m  ike  any  such  report,  or  which  shall  fail  to  correct  any  such  report 
wuhin  ten  days  after  notice  by  the  board  of  railroad  commissioners, 
shall  be  liable  to  a  penalty  of  two  hundred  and  fifty  dollars,  and  an 
a  Iditional  penalty  of  twenty-five  dollars  for  each  day  after  September 
first  on  which  it  shall  neglect  to  file  the  same,  to  be  sued  for  in  the 
name  of  the  people  of  the  state  of  New  York,  for  their  use. 

The  board  of  railroad  commissioners  may  extend  the  time  herein 
limited  for  cause  shown. 

L.  1890,  ch.  98,  §  2. 

§  58.  "When  conductors  and  brakemen  may  be  policemen. — 

The  governor  may  appoint  any  conductor  or  brakeman  on  any  train 
conveying  passengers  on  any  steam  railroad  in  this  state,  a  policeman, 
with  all  the  powers  of  a  policeman  in  cities  and  villages,  for  the  pres- 
ervation of  order  and  of  the  public  peace,  and  the  arrest  of  all  per- 
sons committing  offenses  upon  the  land  or  property  of  the  corporation 
owning  or  operating  such  railroad ;  and  he  may  also  appoint,  on  the 
application   of  any  such  corporation   or  of  any  steamboat  company, 
such  additional  policemen,  designated  by  it,  as  he  may  deem  proper, 
who  shall  have  the  same  powers.     Every  such  policeman   shall 
within  fifteen  days  after  receiving  his  commission,  and  before  en- 
tering upon  the  duties  of  his  office,  take  and  subscribe  the  constitu- 
tional oath  of  office,  and  file  it  with  his  commission  in  the  office  of 
the  secretary  of  state.     Every  such  policeman  shall  when  on  duty 
wear  a  metallic  shield,  with  the  words  "railway  police,"  or  "steam- 
boat police,"  as  the  case  may  be,  and  the  name  of  the  corporation 
for  which  appointed  inscribed  thereon,  which  shall  always  be  worn 
in  plain  view,  except  when  employed  as  a  detective.    The  compensa- 
tion of  every  such  policeman  shall  be  such  as  may  be  agreed  upon 
between  him  and  the  corporation  for  which  he  is  appointed,  and 

29 


RAILROAD  LAW. 

shall  be  paid  by  the  corporation.  When  any  corporation  shall  no 
longer  require  the  services  of  any  such  policeman  they  may  file 
notice  to  that  effect  in  the  office  in  which  notice  of  his  appointment 
was  originally  filed,  and  thereupon  such  appointment  shall  cease 
and  be  at  an  end. 

Am'd  by   ch.   609    of   1899. 

Am"d  by  ch.  380  of  1906. 

§  59.  Requisites  to  exercise  of  powers  of  future  railroad 
corporations. — No  railroad  corporation  hereafter  formed  under  the 
laws  of  this  State  shall  exercise  the  powers  conferred  by  law  upon 
-such  corporations  or  begin  the  construction  of  its  road  until  the 
directors  shall  cause  a  copy  of  the  articles  of  association  to  be  pub- 
lished in  one  or  more  newspapers  in  each  county  in  which  the  road  is 
p-oposed  to  be  located,  at  least  once  a  week  for  three  successive  weeks, 
and  shall  file  satisfactory  proof  thereof  with  the  board  of  railroad 
commissioners  ;  nor  until  the  board  of  railroad  commissioners  shall 
certify  that  the  foregoing  conditions  have  been  complied  with,  and 
also  that  public  convenience  and  a  necessity  require  the  construction 
of  said  railroad  as  proposed  in  said  articles  of  association.  The  fore- 
going certificate  shall  be  applied  for  within  six  months  after  the  com- 
pletion of  the  three  weeks'  publication  hereinbefore  provided  for.  If 
certificate  is  refused  no  further  proceedings  shall  be  had  before  said 
board,  but  the  application  may  be  renewed  after  one  year  from  the 
date  of  such  refusal.  Prior  to  granting  or  refusing  said  certificate  the 
board  shall  have  a  right  to  permit  errors,  omissions  or  defects  to  be 
.supplied  and  corrected.  After  a  refusal  to  grant  such  certificate  the 
board  shall  certify  a  copy  of  all  maps  and  papers  on  file  in  its  office 
and  of  the  findings  of  the  board  when  so  requested  by  the  directors 
aforesaid.  Such  directors  may  thereupon  present  the  same  to  a 
general  term  of  the  supreme  court  of  the  department  within  which 
said  road  is  proposed  in  whole  or  in  part  to  be  constructed,  and  said 
general  term  shall  have  power,  in  its  discretion,  to  order  said  board, 
for  reasons  stated,  to  issue  said  certificate,  and  it  shall  be  issued  ac- 
cordingly. Such  certificate  shall  be  filed  in  the  office  of  the  secretary 
of  state,  and  a  copy  thereof,  certified  to  be  a  copy  by  the  secretary  of 
state,  or  his  deputy,  shall  be  evidence  of  the  fact  therein  stated. 
Nothing  in  this  section  shall  prevent  any  such  railroad  corporation 
from  causing  such  examinations  and  surveys  for  its  proposed  railroad 
to  be  made  as  may  be  necessary  to  the  selection  of  the  most  advan- 
tageous route  ;  and  for  such  purpose  by  its  officers  or  agents  and  ser- 
vants, to  enter  upon  the  lands  or  water  of  any  person,  but  subject  to 
;vhe  responsibility  for  all  damages  which  shall  be  done  thereto. 

Am'd  by  chap.  545  of  1895.     Took  effect  May  23,  1895. 

30 


RATLKOAD  LAW. 

!  59a.  Railroad  commissioners  may  certify  part  of  the  route  of  a 
street  surface  railroad.  Power  to  revoke  certificates.  Street  surface 
railroad  extension. — Whenever  application  is  made  by  a  street  surface 
railroad  company  for  a  certificate  of  public  convenience  and  a  necessity 
as  required  by  the  provisions  of  the  foregoing  section,  and  it  shall  ap- 
pear to  the  board  of  railroad  commissioners,  after  examination  of  the 
proposed  route  of  the  applicant  company  that  public  convenience  and  a 
necessity  do  not  require  the  construction  of  said  railroad  as  proposed  in 
its  articles  of  association  but  do  require  the  construction  of  a  part  of  the 
said  railroad,  the  board  of  railroad  commissioners  may  issue  its  certifi- 
cate for  the  construction  of  such  part  of  the  said  railroad  as  seems  to  it 
to  be  required  by  public  convenience  and  a  necessity.  In  case  any  rail- 
road company  which  shall  hereafter  obtain  the  certificate  of  the  board  of 
railroad  commissioners  that  public  convenience:  and  a  necessity  require 
the  construction  of  the  whole  or  a  part  of  the  said  railroad  shall  fail  to 
begin  such  construction  within  two  years  from  the  date  of  the  issuing  of 
said  certificate,  the  board  of  railroad  commissioners  may  inquire  into 
the  reason  for  such  failure  and  the  said  board  may  revoke  said  certificate 
if  it  shall  appear  to  it  to  be  in  the  public  interest  BO  to  do.  Any  street 
surface  railroad  company  which  proposes  to  extend  its  road  beyond  the 
limits  of  any  city  or  incorporated  village  by  a  route  which  will  be  prac- 
tically parallel  with  a  street  surface  railroad  already  constructed  and  in 
operation  shall  first  obtain  the  certificate  of  the  board  of  railroad  com- 
missioners that  public  convenience  and  a  necessity  require  the  construc- 
tion of  such  extension  as  provided  in  the  case  of  a  railroad  corporation 
newly  formed.  Before  making  application  for  such  certificate  the  cor- 
poration shall  cause  to  be  advertised  the  route  of  the  proposed  extension 
in  one  or  more  newspapers  in  each  county  in  which  such  extension  is  to 
be  constructed,  at  least  once  a  week  for  three  successive. weeks,  and 
shall  file  satisfactory  proof  of  such  publication  with  the  board  of  rail- 
road commissioners.  Nothing  in  this  section  shall  prevent  street  rail- 
road companies  from  making  extensions  within  the  limits  of  cities  or 
incorporated  villages  upon  compliance  with  the  provisions  of  law  now 
applicable  thereto. 

[Added  ch.  643  of  1898.] 

Amended  by  ch.  226  of  1902.     In  effect  March  26,  1902. 

§  59b.  Whenever  it  shall  be  made  to  appear  to  the  board  of  railroad  commis- 
sio'ners  that  any  steam  railroad  corporation,  which  has  obtained  from  it  a  certifi- 
cate under  bection  fifty-nine  of  the  railroad  law  since  eighteen  hundred  and  ninety- 
four  and  whose  road  is  less  than  ten  miles  in  length,  and  was  to  be  built  in  the 
counties  of  Saratoga  and  Washington,  shall  not  have  completed  its  construction 
ami  put  it  in  operation  within  ihree  years  after  obtaining  such  certificates,  the  said 
board,  on  notice  to  such  corporation,  shall  have  the  power  to  revoke  the  said  cer- 
tificate and  consent  and  thereupon  the  corporate  existence  and  power  of  such  rail- 
road corporation  shall  cease  and  determine. 

Added  by  ch.  597  of  1899. 

£  GO.  All  steam  surface  railroads,  hereafter  built  except  additional  switches  and 
sidings,  must  be  so  constructed  as  to  avoid  all  public  crossings  at  grade,  when 
ever  practicable  so  to  do.  Whenever  application  is  made  to  the  board  of  railroad 
commissioners,  under  section  fifty-nine  of  the  railroad  law,  there  shall  be  filed 
with  said  board  a  map  showing  the  streets,  avenues  and  highways  proposed  to  be 
crossed  by  the  new  construction,  and  the  said  board  shall  determine  whether  such 
crossing  shall  be  under  or  over  the  proposed  railroad,  except  where  said  board 
shall  determine  such  method  of  crossing  to  be  impracticable.  Whenever  aii  ap- 
plication is  made  under  this  section  to  determine  the  manner  of  crossing,  the  said 
hoard  shall  designate  a  time  and  place  when  and  where  a  hearing  will  be  given  to 
said  railroad  company,  and  shall  notify  the  municipal  corporation  having  jurisdic- 
ti  PI  over  such  streets,  avenues  or  highways  proposed  to  be  crossed  by  the  new 
railroad.  The  said  board  shall  also  give  public  notice  of  such  hearing  in  at  least 
two  newspapers  published  in  the  locality  ulfected  by  the  application,  and  all 
persons  owning  land  in  the  vicinity  of  the  proposed  crossings  shall  have  the 
right  to  be  heard.  The  decision  of  the  said  board  rendered  in  any 
pr  jc.cei lings  under  this  section  shall  be  communicated,  within  twenty 
days  after  final  hearing,  to  all  parties  to  whom  notice  of  the  hearing,  in  said 

30a 


firoceedings  was  given,  or  who  appeared  at  said  hearing  by  counsel 
<  r  in  person. 

[Added,  cii.  754  of  1897.     Li  effect  July  1,  1897.] 

§  61.   When  a  new  street,  avenue  or  highway,  or  new  portion  of  a 
t  treet,  avenue  or   highway   shall   hereafter   he  constructed  ad 
f  team  surface  railroad  other  than  pursuant  to  the  provisions  of  section 
fixty-two  of  this  act.  such  street,  avenue  or  highway  or  portion  of 
?uch  street,  avenue  or  highway,  shall  pass  over  or  under  such    rail- 
road  or  at  grade  as  the  board  of  railroad  commissioners  shall  dii 
Notice   of   intention    to   lay   out   such   street,  avenue  or  hi^hv 
or  new  portion  of  a    street,    avenue    or   highway,   across    a  steam 
surface  railroad,  shall  be  given  to  such  railroad  company  by  the 
municipal  corporation  at  least  fifteen  days  prior  to  the  making  of 
the  order  laying  out  such  street,  avenue  or  highway  by  service  per- 
sonally on  the  president  or  vice  president  of  the  railroad  corporation, 
or  any  general  officer  thereof.     Such  notice  shall  designate  the  time 
and  place  and  when  and  where  a  hearing  will  be  given  to  such  railroad 
company,  and  such  railroad  company  shall  have  the  right  to  be  heard 
before  the  authorities  of  such  municipal  corporation  upon  the  ques- 
tion of  the  necessity  of  such  street,  avenue  or  highway.     If  the  mu- 
nicipal corporation  determines  such  street,  avenue  or  highway  to  be 
necessary,  it  shall  then  apply  to  the  board  of  railroad  commissioners 
before  any  further  proceedings  are  taken,  to  determine  whether  such 
street,  avenue  or  highway  shull  pass  over  or  under  such  railroad,  or 
at  grade,  whereupon  the  said   board  of  railroad  commissioners  shall 
appoint  a  time  and  place  for  hearing  such  application,  and  shall  give 
such  notice  thereof,  as  they  judge  reasonable,  not,  however,  less  than 
ten  days,  to  the  railroad  company  whose  railroad  is  to  be  crossed  by 
such  new  street,  avenue  or  highway,  or  new  portion  of  a  street,  ave- 
nue or  highway,  to  the  municipal  corporation  and  to  the  owners  of 
land   adjoining   the   railroad   and  that  part  of  the  street,  avenue  or 
highway  to  be  opened  or  extended.     The  said  board  ot  railroad  com- 
missioners shall  determine  whether  such  street,  avenue  or  highway, 
or  new  portion  of  a  street,  avenue  or  highway,  shall  be  constructed 
over  or  under  such  railroad  or  at  grade:  and  if  said  board  determine 
that  such  street,  avenue  or  highway  shall  be  carried  across  such  rail- 
road  above  grade,  then   such   board  shall  determine  the  height,  the 
length  and  the  material  of  the  bridge  or  structure  by  means  of  which 
such  stre-'t,  avenue  or  highway  shall  be  carried  across  such  railroad, 
and  the  length,  character  and  grades  of  the  approaches  thereto;  and 
if  said   board   shall  determine  that  such  street,  avenue  or  highway 
shall  be  constructed  or  extended  below  the  grade,  said  board  shall 

30b 


determine  the  manner  and  method  in  which  the  same  shall  be  so 
carn<_-ii  under,  and  the  grade  or  grades  thereof,  and  if  said  board  shall 
determine  that  said  street,  avenue  or  highway  shall  be  constructed  or 
extended  at  grade,  said  board  shall  determine  the  manner  and  method 
in  which  the  same  shall  be  carried  over  said  railroad  at  grade  and 
what  safeguards  shall  be  maintained.  The  decision  of  the  said  board 
as  to  the  manner  and  method  of  carrying  such  new  street,  avenue  or 
highway,  or  new  portion  of  a  street,  avenue  or  highway  across 
such  railroad,  shall  be  final,  subject,  however,  to  the  right  of  appeal 
hereinafter  given.  The  decision  of  said  board  rendered  in  any 
proceeding  under  this  section  shall  be  communicated  within  twenty 
days  after  final  hearing  to  all  parties  to  whom  notice  of  the  hearing 
in  such  proceeding  was  given  or  who  appeared  at  such  hearing  by 
counsel  or  in  person. 
[Am'd  ch.  520  of  1898]. 

§  62.  The  mayor  and  common  council  of  any  city,  the  president 
and  trustees  of  any  village,  the  town  board  of  any  town  within 
which  a  street,  avenue  or  highway  crosses  or  is  crossed  by  a  steam 
surface  railroad  at  grade,  or  any  stearn  surface  railroad  company, 
whose  road  crosses  or  is  crossed  by  a  street,  avenue  or  highway  at 
grade,  may  bring  their  petition,  in  writing,  to  the  board  of  railroad 
commissioners,  therein  alleging  that  public  safety  requires  an  altera- 
tion in  the  manner  of  such  crossing,  its  approaches,  the  method  of 
crossing,  the  location  of  the  highway  or  crossing,  the  closing  and 
discontinuance  of  a  highway  crossing  and  the  diversion  of  the  travel 
thereon  to  another  highway  or  crossing,  or  if  not  practicable  to  change 
such  crossing  from  grade  or  to  close  and  discontinue  the  same,  the 
opening  of  an  additional  crossing  for  the  partial  diversion  of  travel 
from  the  grade  crossing  and  praying  that  the  same  may  be  ordered  ; 
whereupon  the  said  board  of  railroad  commissioners  shall  appoint  a 
time  and  place  for  hearing  the  petition,  and  shall  give  such  personal 
notice  thereof  as  they  shall  judge  reasonable,  of  not  less  then  ten  days, 
however,  to  said  petitioner,  the  railroad  company,  the  municipality 
in  which  such  crossing  is  situated,  and  ,to  the  owners  of  the  lands 
adjoining  such  crossing  and  adjoining  that  part  of  the  highway  to  be 
changed  in  grade  or  location,  or  the  land  to  be  opened  for  a  new 
crossing,  and  shall  cause  notice  of  said  hearing  to  be  advertised  in  at 
least  two  newspapers  published  in  the  locality  affected  by  the  applica- 
tion ;  and  after  such  notice  of  hearing  the  said  board  of  railroad  com- 
missioners shall  determine  what  alterations  or  changes,  if  any,  shall 
be  made.  The  decision  of  said  board  of  railroad  commissioners 
rendered  in  any  proceeding  under  this  section,  shall  be  comrnuni- 

30c 


catcd  within  twenty  days  after  final  hearing  to  all  parties  to  whom 
notice  of  the  hearing  in  said  proceeding  was  given,  or  who  appeared 
at  said  hearing  by  counsel  or  in  person.  Any  person  aggrieved  by  su<-h 
decision,  or  by  a  decision  made  pursuant  to  sections  sixty  and  sixty-one 
hereof,  and  who  was  a  party  to  said  proceeding,  may  within  sixty  days 
appeal  therefrom  to  the  appellate  division  of  the  supreme  court  in  the 
department  in  which  such  grade  crossing  is  situated  and  to  the  court 
of  appeals,  in  the  same  manner  and  with  like  effect  as  is  provided  in 
the  case  of  appeals  from  an  order  of  the  supreme  court. 
A n i'd  by  ch.  359  of  1899. 

§  63.  The  municipal  corporation  in  which  the  highway  crossing  is 
located,  may  with  the  approval  of  the  railroad  company,  acquire  by 
purchase  any  lands,  rights  or  easements  necessary  or  required  for  the 
purpose  of  carrying  out  the  provisions  of  sections  sixty,  sixty-one  and 
sixty-two  of  this  act,  but  if  unable  to  do  so  shall  acquire  such  lands, 
rights  or  easements  by  condemnation  either  under  the  condemnation 
law,  or  under  the  provisions  of  the  charter  of  such  municipal  corpora- 
tion. The  railroad  company  shall  have  notice  of  any  such  proceedings 
and  the  right  to  be  heard  therein. 

Am'd  by  ch.  226  of  1899. 

§  64.  When  a  highway  crosses  a  railroad  by  an  overhead  bridge,  the 
frame  work  of  the  bridge  and  its  abutments  shall  be  maintained  and 
kept  in  repair  by  the  railroad  company,  and  the  roadway  thereover  and 
the  approaches  thereto  shall  be  maintained  and  kept  in  repair  by  the 
municipality  in  which  the  same  are  situated;  except  that  in  the  case 
of  any  overhead  bridge  constructed  prior  to  the  enactment  of  sections 
sixty-one  and  sixty-two  of  this  act,  the  roadway  over  and  the  approaches 
to  which  the  railroad  company  was  under  obligation  to  maintain  and 
repair,  such  obligations  shall  continue,  provided  the  railroad  company 
shall  have  at  least  ten  days'  notice  of  any  defect  in  the  roadway  thereover 
and  the  approaches  thereto,  which  notice  must  be  given  in  writing  by 
the  commissioner  of  highways  or  other  duly  constituted  authorities,  and 
the  railroad  company  shall  not  be  liable  by  reason  of  any  such  defect 
unless  it  shall  have  failed  to  make  repairs  within  ten  days  after  the 
service  of  such  notice  upon  it.  When  a  highway  passes  under  a  rail- 
road, the  bridge  and  its  abutments  shall  be  maintained  and  kept  in 
repair  by  the  railroad  company,  and  the  subway,  and  its  approaches 
shall  be  maintained  and  kept  in  repair  by  the  municipality  in  which 
the  same  are  situated. 

Added  ch.  754  of  1897.     In  effect  July  1,  1897. 

Am'd  by  ch.  140  of  1902.     In  effect  March  13,  1902. 

§  65.  Whenever,  under  the  provisions  of  section  sixty  of  this  act, 
new  railroads  are  constructed  across  existing  highways,  the  expense  of 
crossing  above  or  below  the  grade  of  the  highway  shall  be  paid  en- 
tirely by  the  railroad  corporations.  Whenever  under  the  provisions 
of  section  sixty-one  of  this  act  a  new  street,  avenue  or  highway  is 
constructed  across  an  existing  railroad,  the  railroad  corporation  shall 
pay  one-half  and  tfhe  municipal  corporation  wherein  such  street, 
avenue  or  highway  is  located,  shall  pay  the  remaining  one-half  of 
the  expense  of  making  such  crossing  above  or  below  grade;  and 
whenever  a  change  is  made  as  to  an  existing  crossing  in  accordance 
with  the  provisions  of  section  sixty-two  of  this  act,  fifty  per  centum 
of  the  expense  thereof  shall  be  borne  by  the  railroad  corporation, 

30d 


twenty-five  per  centum  by  the  municipal  corporation,  and  twenty  • 
five  per  centum  by  the  state.  Whenever,  in  carrying  out  the  pro- 
visions of  sections  sixty-one  or  sixty-two  of  this  act,  two  or  mov« 
lines  of  steam  surface  railroad,  owned  and  operated  by  different  cor* 
porations,  cross  a  highway  at  a  point  where  a  change  in  grade  ia 
made,  each  corporation  shall  pay  such  proportion  of  fifty  per  centum 
of  the  expense  thereof  as  shall  be  determined  by  the  board  of  rail- 
road commissioners.  In  carrying  out  the  provisions  of  sections 
sixty,  sixty-one  and  sixty-two  of  this  act  the  work  shall  be  done  by 
the  railroad  corporation  or  corporations  affected  thereby,  subject  to 
the  supervision  of  and  approval  of  the  board  of  railroad  commission- 
ers, and  in  all  cases,  except  where  the  entire  expense  is  paid  by  the 
railroad  corporation,  the  expense  of  construction  shall  be  paid 
primarily  by  the  railroad  company,  and  the  expense  of  acquiring  ad- 
ditional lands,  rights  or  easements,  shall  be  paid  primarily  by  the 
municipal  corporation  wherein  such  highway  crossings  are  located. 
Plans  and  specifications  of  all  changes  proposed  under  sections 
sixty-one  and  sixty-two  of  this  act,  and  an  estimate  of  the  expense 
thereof  shall  be  submitted  to  the  board  of  railroad  commissioners  for 
their  approval  before  the  letting  of  any  contract.  In  case  the  work 
is  done  by  contract  the  proposals  of  contractors  shall  be  submitted  to 
the  board  of  railroad  commissioners,  and  if  the  board  shall  deter- 
mine that  the  bids  are  excessive  it  shall  have  the  power  to  require 
the  submission  of  new  proposals.  The  board  of  railroad  commis 
sioners  may  employ  temporarily  such  experts  and  engineers  as  may 
be  necessary  to  properly  supervise  any  work  that  may  be  undertaken 
under  sections  sixty,  sixty-one  or  sixty-two  of  this  act,  the  expense 
thereof  to  be  paid  by  the  comptroller  upon  the  requisition  and  cer- 
tificate of  the  said  board,  said  expense  to  be  included  in  the  cost  of 
the  particular  change  in  grade  on  account  of  which  it  is  incurred  and 
finally  apportioned  in  the  manner  provided  in  this  section.  Upon 
the  completion  of  the  work  and  its  approval  by  the  board  of  railroad 
commissioners  an  accounting  shall  be  had  between  the  railroad  cor- 
poration and  the  municipal  corporation,  of  the  amounts  expended  by 
each  with  interest,  and  if  it  shall  appear  that  the  railroad  corporation 
or  the  municipal  corporation  have  expended  more  than  their  propor- 
tion of  the  expense  of  the  crossing  as  herein  provided,  a  settlement 
shall  be  forthwith  made  in  accordance  with  the  provisions  of  this  sec- 
tion. All  items  of  expenditure  shall  be  verified  under  oath,  and,  in 
case  of  a  dispute  between  the  railroad  corporation  and  the  municipal 
corporation  as  to  the  amount  expended,  any  judge  of  the  supreme 
court  in  the  judicial  district  in  which  the  municipality  is  situated 
may  appoint  a  referee  to  take  testimony  as  to  the  amount  expended, 

30e 


and  the  confirmation  of  the  report  of  the  referee  shall  be  final.  la 
the  event  of  the  failure  or  refusal  of  the  railroad  corporation  to  pay 
its  proportion  of  the  ex [Minso,  the  same,  with  interest  from  the  date 
of  such  accounting,  may  be  levied  and  assessed  upon  the  railroad 
corporation  and  collected  in  the  same  manner  that  taxes  and  assess- 
ments are  now  collected  by  the  municipal  corporation  within  which 
the  work  is  done;  and  in  the  event  of  the  failure  or  refusal  of  the 
municipal  corporation  to  pay  its  proportion  of  the  expense,  suit  may 
be  instituted  by  the  railroad  corporation  for  the  collection  of  the 
same  with  interest  from  the  date  of  such  accounting,  or  the  railroad  cor- 
poration may  offset  such  amount  with  interest  against  any  taxes  levied 
or  assessed  against  it  or  its  property  by  such  municipal  corporation. 
The  legislature  shall  annually  appropriate  out  of  any  moneys  not 
otherwise  appropriated,  the  sum  of  one  hundred  thousand  dollars  for 
the  purpose  of  paying  the  state's  proportion  of  the  expense  of  a 
change  in  an  existing  grade  crossing.  If,  in  any  year,  any  less  sum 
than  one  hundred  thousand  dollars  is  expended  by  the  state  for  the 
purpose  aforesaid  the  balance  remaining  unexpended  shall  be  applied 
to  reduce  the  amount  appropriated  by  the  state  in  the  next  succeed- 
ing vear,  except  that  no  such  deduction  shall  be  made  in  case  there 
are  outstanding  and  unadjusted  obligations  on  account  of  a  change 
in  an  existing  grade  crossing  fora  portion  of  which  the  state  is  liable 
under  the  provisions  of  this  section.  In  the  event  of  the  appropria- 
tion made  by  the  state  in  any  one  year  being  insufficient  to  pay  the 
state's  proportion  of  the  expense  of  any  change  that  may  be  ordered 
the  first  payment  from  the  appropriation  of  the  succeeding  year  shall 
be  on  account  of  said  change,  and  no  payment  shall  be  made  on  ac- 
count of  any  subsequent  change  that  may  be  ordered,  nor  .shall  any 
subsequent  change  be  ordered  until  the  obligation  of  the  state  on  ac- 
count of  the  first-named  change  in  grade  ha.3  betm  fully  discharged, 
unless  the  same  shall  be  provided  for  by  an  additional  appropriation 
to  be  made  by  the  legislature.  The  state's  proportion  of  the 
expense  of  changing  any  existing  pade  crossing  shall  be  paid  by 
the  state  treasurer  on  the  warrant  of  the  comptroller,  to  which 
shall  be  appended  the  certificate  of  the  board  of  railroad  com- 
missioners to  the  effect  that  the  work  has  been  properly  per- 
formed and  a  statement  showing  the  situation  of  the  crossing  that 
has  been  changed,  the  total  cost  and  the  proportionate  expensa 
thereof,  and  the  money  shall  be  paid  in  whole  or  in  part  to  t li- 
ra ihoad  corporation  or  to  the  municipal  corporation  as  the  board 
of  railroad  commissioners  may  direct,  subject,  however,  to  the 
rights  of  the  respective  parties  as  they  api>ear  from  the  account- 
ing to  be  had  as  hereinbefore  provided  for.  No  claim  for  <l:u:i 
to  property  on  account  of  the  change  or  abolishment  of  any  <  • 
ing  under  the  provisions  of  this  act  shall  be  allowed  unless  notice 
of  such  claim  is  filed  with  the  board  of  railroad  commissioners 
within  six  months  after  completion  of  the  work  necessary  for  such. 

chancre  or  abolishment. 

Ain'd  by  chap.  517  of  1900.     In  effect  April  19,  1900. 

30f 


THE  RAILROAD  LAW. 

£  CO.  The  railroad  commissioners  may,  in  the  absence  of  any 
application  therefor,  when  in  their  opinion,  public  safety  re- 
quires an  alteration  in  an  existing  grade  crossing,  institute  pro 
ceedings  on  their  own  motion  for  an  alteration  in  such  grade 
crossing,  upon  such  notice  as  they  shall  deem  reasonable,  of  not 
less  than  ten  days,  however,  to  the  railroad  company,  the  muni- 
cipal corporation  and  the  person  or  persons  interested,  and  pro- 
ceedings shall  be  conducted  as  provided  in  section  sixty-two  of 
this  act.  The  changes  in  existing  grade  crossings  authorized  or 
required  by  the  board  of  railroad  commissioners  in  any  one 
year  shall  be  so  distributed  and  apportioned  over  and  among 
the  railroads  and  the  municipalities  of  the  state  as  to  produce 
such  equality  of  burden  upon  them  for  their  proportionate  part 
of  the  expenses  as  herein  provided  for  as  the  nature  and  cir 
cumstances  of  the  cases  before  them  \vill  permit. 

[Added,  cli.  754  of  1897.     In  effect  July  1,  1897.] 

§  67.  It  shall  be  the  duty  of  the  corporation,  municipality  or 
person  or  persons  to  whom  the  decisions  or  recommendations  of 
the  board  of  railroad  commissioners  are  directed,  as  provided 
in  sections  sixty,  sixty-one,  sixty-two  and  sixty-six  of  this  act  to 
comply  with  such  decisions  and  recommendations,  and  in  case 
of  their  failure  so  to  do,  the  board  shall  present  the  facts  in  the 
case  to  the  attorney-general,  who  shall  thereupon  take  proceed- 
ings to  compel  obedience  to  the  decisions  and  recommendations 
of  the  board  of  railroad  commissioners.  The  supreme  court  at 
a  special  term  shall  have  the  power  in  all  cases  of  such  decis- 
ions and  recommendations  by  the  board  of  railroad  commis- 
sioners to  compel  compliance  therewith  by  mandamus,  subject 
to  appeal  to  the  appellate  division  of  the  supreme  court  and 
the  court  of  appeals,  in  the  same  manner,  and  with  like  effect 
as  is  provided  in  case  of  appeals  from  any  order  of  the  su- 
preme court. 

[Added,  cli.  754  of  1897.    In  effect  July  1,  1897.] 

§  67a.  Whenever  in  carrying  out  any  of  the  provisions  of 
sections  sixty,  sixty-one,  sixty-two,  sixty-three,  sixty-four, 
sixty-five,  sixty-six,  or  sixty-seven  of  this  act,  any  municipal- 
ity shall  incur  any  expense  or  become  liable  for  the  payment 
of  any  moneys,  if  shall  be  lawful  for  such  municipality  to 
temporarily  borrow  such  moneys  on  the  notes  or  certificates 
of  such  municipality,  and  to  include  the  amount  of  outstand- 
ing notes  or  certificates,  or  any  part,  thereof,  in  its  next 
annual  tax  levy  for  municipal  purposes,  or  in  the  discretion 
of  the  common  council  in  case  of  a  city,  the  board  of  trustees 
in  case  of  a  village  or  the  town  board  in  case  of  a  town,  to 

30g 


THE  RAILROAD  LAW. 

borrow  the  same,  or  any  part  thereof,  on  the  credit  of  the 
municipality,  and  to  issue  bonds  therefor,  which  bonds  shall 
be  signed  by  the  mayor  and  clerk  in  case  of  a  city,  the  presi- 
dent and  clerk  in  case  of  a  village  and  the  town  board  in  case 
of  a  town,  and  shall  be  in  such  form  and  for  such  sums  and 
be  payable  at  such  times  and  places  with  interest  not  exceed 
ing  four  per  centum  per  annum,  as  the  common  council  in 
case  of  a  city,  the  board  of  trustees  in  case  of  a  village,  and 
the  town  board  in  case  of  a  town,  shall  direct. 

Added  by  ch.  541  of  1899. 

Amended  by  ch.  198  of  1902.    In  effect  March  21,  1902. 

§  68.  All  steam  railroads  hereafter  constructed  across  the  tracks  of 
any  o  her  railroad  and  any  street  surface  railroad  hereafter  constructed 
across  a  steam  railroad  shall  be  above,  below,  or  at  grade  of  such 
existing  railroad  as  the  board  of  railroad  commissioners  shall  deter- 
mine, and  such  board  shall  in  such  determination  fix  the  proportion 
of  expense  of  such  crossing  to  be  paid  by  each  railroad, 

Am'd  by  chap.  739  of  1900.    In  effect  May  2,  1900. 

|  69.  The  provisions  of  this  act  shall  also  apply  to  all  existing 
jr  future  steam  surface  railroads,  on  which,  after  the  passage 
of  this  act,  electricity  or  some  other  agency  than  steam  shall 
!  .c  substituted  as  a  motive  power. 

[Added,  ch.  754  of  1897.     In  effect  July  1,  1897.] 

§  2.   None  of  the  provisions  of  this  act  shall  apply  to  crossings 
in  the  city  of  Buffalo   under   the  jurisdiction   of  the  grade  cross 
ing    commissioners    of    that    city,    nor    shall    they   apply  to    the 
University  avenue  or  Brown  street  crossing,  in  the  city  of  Roch- 
ester. 

§  8.  All  acts  and  parts  of  acts  inconsistent  with  this  act  are  hereby 

repealed. 
ph.lM.flWU 


RAILROAD  LAW. 
ARTICLE  III. 

CONSOLIDATION,    LEASE,    SALE,    AND    REORGANIZATION. 

SHCTION  70.  Consolidation  of  corporations  owning  continuous  lines. 

71.  Conditions. 

1.  Joint  agreement ;  amount  of  capital  stock. 

2.  Agreement  to  be  submitted  to  meeting  of  stockholders. 

72.  New  coiporation. 

73.  Creditors'  lights  not  to  be  impaired. 

74.  Assessment  of  pi'iperty  of  new  corporation. 

75.  Stock  of  municipal  corporation,  how  represented. 

76.  Forec.L'suve  of  mortgages  made  by  consolidated  railroads  partly  in 

the  state. 

77.  Powers  of  corporation  of  other  states. 

78.  Lease  of  road. 

79.  Lessees 'of  railroad  may  acquire  stock  therein. 

80.  Consolidation  and  lease  of  parallel  lines  prohibited. 

81.  Mortgagee  may  purchase  at  foreclosure  sale. 

82.  Certificates  of  stock  may  be  issued  after  foreclosure  in  certain  cases. 

83.  Liabilities  of  reorganized  uiilroad  corporations. 
84. 

§  70.  Consolidation  of  corporations  owning  continuous  lines. — 

Any  railroad  or  other  corporation,  organized  under  the  laws  of  this 
state,  or  of  this  state  and  any  other  state,  and  owning  or  operating  a 
railroad,  bridge  or  tunnel,  either  wholly  within  or  partly  within,  and 
partly  without  the  state,  or  whose  lines  or  routes  of  road  have  been 
located  but  not  constructed,  may  merge  and  consolidate  its  capital 
stock,  franchises,  and  property  with  the  capital  stock,  franchises  and 
property  of  any  other  railroad,  tunnel  or  bridge  corporation  or  corpo- 
rations organized  under  the  laws  of  this  state  or  of  this  state  and  any 
other  state,  or  under  the  laws  of  any  other  state  or  states,  whenever 
the  two  or  more  railroads,  of  the  companies  or  corporations  so  to  be 
consolidated,  tunnels,  bridges  or  branches  or  any  part  thereof,  or  the 
line  or  routes  of  their  road,  if  not  constructed,  shall  or  may  form  a 
continuous  or  connected  line  of  railroad  with  each  other  or  by  means 
of  any  intervening  railroad  bridge,  tunnel  or  ferry,  and  any  such  con- 
solidated corporation  may  thereupon  construct  or  finish  the  construction 
of  such  continuous  line  of  railroad,  if  not  previously  constructed,  and 
operate  the  same,  subject  to  all  provisions  of  law  applicable  to  such 
railroad  corporations.  Where  the  road  to  be  operated  is  in  whole  or 
in  part  a  tunnel  or  subsurface  road,  authorized  by  section  16  of  this 
chapter,  its  consolidation  with  another  road  or  roads  under  the  pro- 
visions of  this  section  shall  not  prevent  any  connecting  rnilrond  f'vo'u 
having  equal  rights  of  transit  for  its  passengers  and  freight  through 
or  over  the  tunnel  or  bridge  of  any  such  road,  upon  the  same  equitable 
terms,  nor  shall  such  consolidation  be  made  where  such  tunnel  or  sub- 
surface road  exceeds  five  miles  in  length. 

31 


THE  RAILROAD  LAW. 

§  71.  Conditions. — Such  consolidation  shall  be  made  in  the  fol- 
lowing manner: 

1.  Joint  agreement;    amount  of  capital  stock. — The  directors 
of  the  corporations  proposing  to  consolidate  may  enter  into  a  joint 
:i;_nvrmrnt,  under  the  corporate  seal  of  each  corporation,  for  the  con- 
solidation of  such  corporations,  and  prescribing  the  terms  and  con- 
ditions thereof,  the  mode  of  carrying  the  same  into  effect,  the  name 
of  the  now  corporation,  the  number  and  names  of  the  directors  and 
other  officers  thereof,  and  who  shall  be  the  first  directors  and  officers 
and  their  places  of  residence,  the  number  of  shares  of  the  capital  stock', 
the  amount  or  par  value  of  each  share,  and  the  manner  of  converting 
the  capital  stock  of  each  corporation  into  that  of  the  new  corporation, 
and  how  and  when  the  directors  and  officers  shall  be  chosen,  with 
such  other  details  as  they  shall  deem  necessary  to  perfect  such  new 
organization  and  the  consolidation  of  such  corporations.     But  in  no 
case  shall  the  capital  stock  of  the  corporation  formed  by  such  con- 
solidation exceed  the  sum  of  the  capital  stock  of  the  corporations  so 
consolidated,  at  the  par  value  thereof.    Nor  shall  any  bonds  or  other 
evidences  of  debt  be  issued  as  a  consideration  for,  or  in  connection 
with,  such  consolidation.     If  either  of  the  corporations  so  to  be  con- 
solidated is  a  corporation  organized  under  the  laws  of  any  other  state 
the  joint  agreement  herein  provided  for  may  fix  the  location  of  the 
principal  office  of  the  new  corporation  in  either  state. 

Amended  by  ch.  228  of  1904.    In  effect  April  4,  1904. 

2.  Agreement  to  be  submitted  to  meeting  of  stockholders.  — , 
If  stockholders  owning  two-thirds  of  all  the  stock  of  each  of  such  cor- 
porations shall  by  a  consent  in  writing,  acknowledged  as  are  deeds 
entitled  to  be  recorded  and  indorsed  upon  said  lease  or  agreement, 
signify  their   assent   thereto,  it  shall   be   deemed  and   taken  as  the 
adoption  of  such  agreement  by  and  on  behalf  of  such   corporation, 
and  the  original  or  a  certified  copy  thereof  shall  be  filed  as  hereinafter 

•provided.  If  such  agreement  shall  not  be  consented,  to  in  writing  by 
holders  of  two-thirds  of  the  stock  of  either  of  such  corporations  as 
hereinbefore  provided,  such  agreement  shall  be  submitted  to  the  stock- 
holders of  each  of  such  corporations  at  a  meeting  thereof  called 
separately  for  the  purpose  of  taking  the  same  into  consideration. 
Dae  notice  of  the  time  and  place  of  holding  such  meeting,  and  the 
object  thereof,  shall  be  given  by  each  corporation  to  its  stockholders 
by  written  or  printed  notices  addressed  to  each  of  the  persons  in 
whose  names  the  capital  stock  of  such  corporation  stands  on  tho  books 
thereof,  and  delivered  to  such  persons  respectively,  or  sent  to  them 
by  mail,  when  their  post-office  address  is  known  to  the  corporation,  at 
least  thirty  days  before  the  time  of  holding  such  meeting,  and  also 
by  a  general  notice  published  at  least  once  a  week  for  four  weeks  suc- 
cessively in  some  newspaper  printed  in  the  city,  town  or  county  where 
such  corporation  has  its  principal  office  or  place  of  business.  At  sm-h 
meeting  of  stockholders  such  agreement  shall  be  considered,  and  a 
vote  by  ballot  taken  for  the  adoption  or  rejection  of  the  same,  and  if 

32 


RAILROAD   LAW. 

the  votes  of  the  stockholders  owning  at  least  two-thirds  of  the  str/ck 
of  each  corporation  present  and  voting  in  person  or  by  proxy  shaii  be 
for  the  adoption  of  such  agreement,  then  that  fact  shall  be  certified 
thereon  by  the  secretaries  of  the  respective  corporations,  under  the 
seal  thereof,  and  the  agreement  so  adopted,  or  a  certified  copy  thereof, . 
shall  be  filed  in  the  office  of  the  Secretary  of  State,  and  in  the  office 
of  the  clerk  of  the  county  where  the  new  corporation  is  to  have  its 
principal  place  of  business,  and  shall  from  thence  be  deemed  and 
taken  to  be  the  agreement  and  act  of  consolidation  of  such  corpora- 
tions, and  thereafter  such  corporations,  parties  thereto,  shall  be  one 
corporation  by  the  name  provided  in  such  agreement,  but  such  act  of 
consolidation  shall  not  release  such  new  corporation  from  any  of  the 
restrictions,  liabilities  or  duties  of  the  several  corporations  so  con- 
solidated. 

Typographical  error  corrected. 

§  72.  New  corporation. — Upon  the  consummation  of  such  act  of 
consolidation  all  the  rights,  privileges,  exemptions  and  franchises  of 
each  of  the  corporations,  parties  to  the  same,  and  all  the  property,  real, 
personal  and  mixed,  and  all  the  debts  due  on  whatever  account  to 
either  of  them,  as  well  as  all  stock  subscriptions  and  other  things  iu 
action  belonging  to  either  of  them  shall  be  taken  arid  deemed  to  be 
transferred  to  and  vested  in  such  new  corporation,  without  further  act 
or  deed ;  and  all  claims,  demands,  property,  rights  of  way,  and  every 
other  interest  shall  be  as  effectually  the  property  of  the  new  corpora 
tioii  as  they  were  of  the  former  corporations,  parties  to  such  agreement 
and  act ;  and  the  title  to  all  real  estate,  taken  by  deed  or  otherwise, 
under  the  laws  of  this  state,  vested  in  either  of  such  corporations,  par- 
ties to  such  agreement  and  act,  shall  not  be  deemed  to  revert  or  be  in 
any  way  impaired  by  reason  of  this  act,  or  anything  done  by  virtue 
thereof,  but  shall  be  vested  in  the  new  corporation  by  virtue  of  such 
act  of  consolidation.  And  it  shall  be  lawful  for  any  railroad  company 
or  corporation,  now  or  hereafter  formed  by  the  consolidation  of  one  or 
more  railroad  companies  or  corporations  organized  under  the  laws  of 
this  state,  or  under  the  laws  of  this  state  and  other  states,  with  one  or 
more  railroad  companies  or  corporations  organized  under  the  laws  i  if 
any  other  state,  or  of  the  laws  of  this  state  and  other  states,  to  issue  its 
bonds  for  the  purpose  of  paying  or  retiring  any  bonds  theretofore  issued 
by  either  of  said  companies  or  corporations  so  consolidated,  or  for  any 
purpose  and  to  the  amount  authorized  by  the  laws  of  the  state  under 
which  either  of  said  companies  or  corporations  so  consolidated  was  or- 
ganized, and  secure  the  same  by  a  mortgage  itpon  its  real  or  personal 
property,  franchises,  rights  and  privileges,  whether  within  or  without 
this  state,  and  subject  to  the  remedies  for  the  enforcement  of  the  same 

33 


RAILKOA.D   LAW. 

under  the  laws  of  either  of  said  states.  Nothing  in  this  act  contained 
shall  authorize  the  execution  of  any  such  mortgage  without  the  consent 
ot  the  stockholders  as  now  required  by  the  laws  of  this  state,  nor  C 
pel  any  bondholder  to  accept  payment  in  whole  or  in  part  of  any  hon.l 
or  bonds  held  by  him  or  to  surrender  the  same  before  they  shall  be- 
come due. 

Am'd  ch.  362  of  1891. 

§73.  Creditors'  rights  not  to  be  impaired.— The  right  of  all 
creditors  of,  and  all  liens  upon  the  property  of,  either  of  such  corpora- 
tions, parties  to  such  agreement  and  act,  shall  be  preserved  unim- 
paired, and  the  respective  corporations  shall  be  deemed  to  continue  in 
existence  to  preserve  the  same,  and  all  debts  arid  liabilities  incurred  by 
either  of  such  corporations  shall  thenceforth  attach  to  such  new  cor- 
poration, and  be  enforced  against  it  and  its  property  to  the  same  ex- 
tent as  if  incurred  or  contracted  by  it.  No  actions  or  proceedings  in 
which  either  of  such  corporations  is  a  party  shall  abate  or  be  discon- 
tinued by  such  agreement  and  act  of  consolidation,  but  may  be  con- 
ducted to  final  judgment  in  the  names  of  such  corporations,  or  such 
new  corporation  may  be,  by  order  of  the  court,  on  motion  substituted 
as  a  party. 

§  74.  Assessment  of  property  of  new  corporation. —  The  real 
estate  of  such  new  corportions,  situate  within  this  state,  shall  be  as- 
sessed and  taxed  in  the  several  towns  and  cities  where  the  same  shall 
be  situated  in  like  manner  as  the  real  estate  of  other  railroad  corporations 
is  or  may  be  taxed  and  assessed,  and  such  proportion  of  the  capital  stock 
and  personal  property  of  such  new  corporation  shall  in  like  manner  be 
assessed  and  taxed  in  this  state,  as  the  number  of  miles  of  its  railroad 
situate  in  this  state  bears  to  the  number  of  miles  of  its  railroad  situate 
in  the  other  state  or  states. 

§  75.  Stocks  of  municipal  corporations,  how  repre- 
sented.—  At  any  meeting  of  the  stockholders  of  any  railroad  corpo- 
ration to  consider  any  agreement  or  proposition  to  consolidate  or  lease, 
the  commissioners  or  other  officers  of  any  municipal  corporation  hold- 
ing or  having  charge  of  any  of  the  capital  stock  of  such  railroad  cor- 
poration shall  represent  such  municipal  corporation,  and  may  act 
an<l  vote  in  person  or  by  proxy  on  all  matters  relating  to  such  con- 
solidation or  lease  in  the  same  manner  as  individual  stockholders. 

Am'd  by  chap.  546  of  1893. 

§  76.  Foreclosure  of  mortgages  made  by  (consolidated)  rail- 
roads partly  in  the  state. — Whenever  a  railroad  corporation  of  this 
or  of  any  other  state  or  states  whose  line  of  road  lies  partly  in  this  state 
and  partly  in  another  state  or  states,  shall  have  executed  a  mortgage 
upon  its  entire  line  of  railroad,  and  a  sale  of  the  entire  line  of  roa<3 

34 


RAILROAD  LAW. 

under  such  mortgage  shall  have  been  or  may  hereafter  be  ordered, 
adjudged  and  decreed  by  a  court  of  competent  jurisdiction  of  the  state 
or  states,  or  by  a  court  of  the  United  States  sitting  within  the  state  or 
states  in  which  the  greater  part  of  such  line  of  railroad  may  be  situated, 
upon  the  confirmation  of  such  judgment  or  decree,  and  of  the  sale  made 
thereunder,  by  the  supreme  court  of  this  state  or  by  the  circuit  court 
of  the  United  States  in  the  judicial  district  in  which  some  part  of  such 
line  of  road  is  situated,  such  sale  shall  operate  to  pass  title  to  the  pur- 
chaser, of  that  part  of  the  line  of  railroad  lying  in  this  state,  together 
with  its  appurtenances  and  franchises,  with  the  same  force  and  effect 
as  if  the  judgment  or  decree  under  which  such  sale  is  had,  had  been 
made  by  a  court  of  competent  jurisdiction  of  this  state.  Such  judg- 
ment or  decree  and  sale  may  be  so  ordered,  adjudged,  decreed  or  con- 
firmed in  any  action  or  proceeding  heretofore  or  hereafter  brought  in 
the  supreme  court,  or  in  a  court  of  the  United  States  sitting  in  this 
state,  for  the  foreclosure  of  such  mortgage,  or  in  aid  of  an  action  for 
that  purpose  in  such  other  state  or  states,  if  it  shall  appear  that  such 
confirmation  is  for  the  interest  of  the  public  and  of  the  parties,  due  and 
lawful  provisions  being  made  for  and  in  respect  of  any  liens  upon  that 
part  of  the  line  of  road  or  other  property  sold  situate  in  this  state, 
and  for  such  costs,  expenses  and  charges  which  may  appear  to  be  just 
and  lawful.  If  a  receiver  of  the  entire  line  of  such  railroad  shall  have 
been,  or  may  hereafter  be  appointed  by  such  court  of  competent  juris- 
diction of  the  state  in  which  the  greater  part  of  the  line  of  railroad  is 
situated,  or  by  a  court  of  the  United  States  sitting  in  sjich  other  state, 
such  receiver  may  perform,  within  this  state,  the  duties  of  his  office  not 
inconsistent  with  the  laws  of  this  state,  and  mav  sue  and  be  sued  in  the 
courts  of  this  state.  [Ain'dby  ch.  356  of  1896.  In  effect  April  21, 1896.] 

§  77.  Powers  of  corporations  organized  to  acquire  and  operate 
railroads  partly  in  the  state. — A  railroad  corporation  created  under 
the  laws  of  the  state  or  states  in  which  the  greater  part  of  the  line  of 
its  railroad  may  be  situated,  or  a  railroad  corporation  created  under 
the  railroad  law,  or  under  article  one  of  the  stock  corporation  law  in 
this  state,  for  the  purpose  of  taking  title  to,  and  operating,  the  line  of 
road  as  so  sold,  under  a  judgment  or  decree  of  a  court  of  this  state,  or 
of  a  court  of  the  United  States  sitting  in  this  state,  for  the  foreclosure 
of  a  mortgage,  with  its  franchises  arid  appurtenances,  may  hold,  possess 
and  operate  not  only  those  parts  of  the  railroad  lying  in  other  states, 
but  also  that  part  of  the  line  of  such  railroad  lying  in  this  state,  and 
shall  be  subject  to  the  duties  and  liabilities  to  which  such  corporation 
was,  by  the  laws  of  this  state,  subject,  and  to  such  further  or  other 
duties  and  liabilities  as  are  now  or  may  hereafter  be  imposed  by  law 
upon  railroad  corporations  of  this  state,  and  the  provisions  of  the  stock 
corporation  law  concerning  reorganization  of  corporations  shall  apply 
to,  and  in  respect  of,  every  such  successor  railroad  corporation.  An 
exemplified  copy  of  the  certificate  or  certificates  of  incorporation,  under 
and  by  virtue  of  which  any  such  corporation  is  created  in  any  other 
state,  and  a  certified  copy  of  the  judgment  or  decree  of  any  court  sit- 
ting in  any  other  state,  under  which  said  railroad  shall  have  been  sold, 
and  a  certified  copy  of  the  order  or  judgment  or  decree  of  confirmation 
and  approval  required  by  the  preceding  section,  or  of  the  order,  judg- 
ment or  decree  of  the  court  of  this  state,  or  of  the  United  States  in  this 
state,  which  decreed  the  sale,  confirming  the  same,  shall  be  filed  in 
the  office  of  the  secretary  of  state  for  this  state,  and  in  the  office  of  the 
county  clerk  of  the  county  where  its  principal  business  office  in  this 

35 


RAILROAD  LAW. 

state  is  or  shall  be  located.  [Am'd  by  ch.  356  of  1896.  In  effect  May 
21,  1896.] 

§  3.  This  act  shall  take  effect  immediately,  and  shall  apply  in  respect 
of  decrees,  foreclosures,  sales,  confirmations,  reorganizations  and  incor- 
porations, whether  heretofore  or  hereafter  made,  provided,  however, 
ihat,  nothing  in  this  act  shall  affect  any  action  or  proceeding  ponding 
in  any  court,  on  or  before  the  first  day  of  April,  eighteen  hundred  ami 
ninety-six,  to  establish  the  invalidity  of  any  foreclosure  or  reorganiza- 
tion theretofore  had,  or  to  enforce  any  judgment  or  claim  arising  before 
such  foreclosure  or  reorganization.  [Ch.  356  of  1896.J 

§  78.  Lease  of  road. —  Any  railroad  corporation  or  any  corpora- 
tion owning  or  operating  any  railroad  or  railroad  route  within  this 
state  may  contract  with  any  other  such  corporation  for  the  use  of 
their  respective  roads  or  routes,  or  any  part  thereof,  and  thereafter 
use  the  same  in  such  manner  and  for  such  time  as  may  be  prescribed 
in  such  contract.  Such  contract  may  provide  for  the  exchange  or 
guaranty  of  the  stock  and  bonds  of  either  of  such  corporations  by 
the  other  and  shall  be  executed  by  the  contracting  corporations 
under  the  corporate  seal  of  each  corporation,  and  if  such  contract 
shall  be  a  lease  of  any  such  road  and  for  a  longer  period  than  one 
year,  such  contract  shall  not  be  binding  or  valid  unless  approved  by 
the  Votes  of  stockholders  owning  at  least  two-thirds  of  the  stock  of 
each  corporation  which  is  represented  and  voted  upon  in  person  or  by  proxy 
at  an  annual  meeting  of  the  stockholders  for  the  purpose  cf  electing  direc- 
tors; called  in  the  manner  prescribed  by  law  provided  thai  the  notice  of  such 
meeting  shall  state  that  one  of  the  purposes  thereof  will  be  the  approval  of 
such  lease,  or  at  a  meeting,  called  separately  for  that  purpose  upon  a  notice 
stating  the  time,  place  and  object  of  the  meeting,  served  at  least  thirty  days 
previously  upon  each  stockholder  personally,  or  mailed  to  him  at  his  post- 
office  address  and  also  published  at  least  once  a  week,  for  four  weeks  suc- 
cessively, in  some  newspaper  printed  in  the  city,  town  or  county  where  such 
corporation  has  its  principal  office,  and  there  shall  be  indorsed  upon  the  con- 
tract the  certificate  of  the  secretaries  of  the  respective  corporations  under 
the  seals  thereof,  to  the  effect  that  the  same  has  been  approved  by  such 
votes  of  the  stockholders,  and  the  contract  shall  be  executed  in  duplicate 
and  lued  in  the  offices  where  the  certificates  of  incorporation  of  the  contracting 
corporations  are  filed.  I  he  road  of  a  corporation  can  not  be  used  under 
any  such  contract  in  a  manner  inconsistent  with  the  provisions  of  iaw  applic- 
able to  its  use  by  the  corporation  owning  the  same  at  tne  time  of  the  execu- 
tion of  the  contract.  Such  contracts  shall  be  executed  by  me  corporations, 
parties  uiereto,  and  proved  and  acknowledged  in  such  manner  as  to  entitle 
the  same  to  be  recorded  in  the  office  of  the  clerk  or  register  of  each  county 
through  or  into  which  the  road  so  to  be  used  shall  run.  If  any  contract  so 
recorded  shall  be  or  has  been  terminated  by  the  contracting  corporations 
i  pursuance  of  resolutions  of  their  respective  boards  of  directors  prior  to 
the  time  specified  in  such  contract  for  the  termination  thereof,  then  the 
contracting  corporations  shall  execute,  acknowledge  and  procure  to  be  recorded 
in  each  office  where  such  contract  is  recorded  a  certificate  to  the  effect  that 
such  contract  has  been  terminated,  stating  the  date  of  the  termination  thereof, 
and  said  certificates  so  recorded  shall  be  presumptive  evidence  of  the  termina- 
tion of  such  contract  accordingly.  Xotmng  in  this  section  shall  apply  to 
any  lease  in  existence  prior  to  May  first,  eighteen  hundred  and  ninety-one. 

Am'd  by  chap.  433  of  1893. 

Am'd   by  chap.  695  of   1905.     In  eifect  June  2,   1905. 

§  79.  Lessees  of  railroad  may  acquire   stock  therein. —  Any 

railroad  corporation  created  by  the  laws  of  this  state,  or  its  succes- 
sors, being  the  lessee  of  the  road  of  any  other  railroad  corporation, 
may  take  a  surrender  or  transfer  of  the  capital  stock  of  the  stock- 
holders, or  any  of  them  in  the  corporation  whose  road  is  held  under 


RAILROAD  LAW. 

lease,  and  issue  in  exchange  therefor  the  like  additional  amount  of  its 
own  capital  stock  at  par,  or  on  such  other  terms  and  conditions  as 
may  be  agreed  upon  between  the  two  corporations ;  and  whenever  the 
greater  part  of  the  capital  stock  of  any  such  corporation  shall  have 
been  so  surrendered  or  transferred,  the  directors  of  the  corporation 
taking  such  surrender  or  transfer  shall  thereafter,  on  a  resolution 
electing  so  to  do,  to  be  entered  on  their  minutes,  become  ex-officio 
the  directors  of  the  corporation  whose  road  is  so  held  under  lease,  and 
shall  manage  and  conduct  the  affairs  thereof,  as  provided  bylaw  ;  and 
whenever  the  whole  of  such  capital  stock  shall  have  been  so  surren- 
dered or  transferred,  and  a  certificate  thereof  filed  in  the  office  of  the 
Secretary  of  State,  under  the  common  seal  of  the  corporation  to  whom 
such 'surrender  or  transfer  shall  have  been  made,  the  estate,  property, 
rights,  privileges  and  franchises  of  the  corporation  whose  stock  shall 
have  been  so  surrendered  or  transferred,  shall  thereupon  vest  in  and 
be  held  and  enjoyed  by  the  corporation,  to  whom  such  surrender  or 
transfer  shall  have  been  made,  as  fully  and  entirely,  and  without 
change  or  diminution,  as  the  same  were  before  held  and  enjoyed,  and 
be  managed  and  controlled  by  the  board  of  directors  of  the  corpora- 
tion, to  whom  such  surrender  or  transfer  of  such  stock  shall  have  been 
made,  and  in  the  corporate  name  of  such  corporation..  Where  stock 
shall  have  been  so  surrendered  or  transferred,  the  existing  liabilities 
of  the  corporation,  and  the  rights  of  the  creditors  and  of  any  stock- 
holder not  surrendering  or  transferring  his  stock,  shall  not  be  affected 
thereby . 

§  80.  Consolidation  and  lease  of  parallel  lines  prohibited. — 

No  railroad  corporation  or  corporations  owning  or  operating  railroads 
whose  roads  run  on  parallel  or  competing  lines,  except  street  surface 
railroad  corporations,  shall  merge  or  consolidate,  or  enter  into  any  con- 
tract for  the  use  of  their  respective  roads,  or  lease  the  same  the  one  to 
the  other,  unless  the  board  of  railroad  commissioners  of  the  state  or  a 
majority  of  such  board  shall  consent  thereto. 

§  81.  Mortgagee    may  purchase    at    foreclosure    sale. —  Any 

mortgagee  of  the  property  and  franchises  of  any  railroad  corporation 
may  become  the  purchaser  of  the  same  at  any  sale  thereof  under  the 
mortgage,  upon  foreclosure  by  advertisement,  or  under  a  judgment, 
or  decree,  or  otherwise,  and  hold  and  use  the  same,  with  all  the  risrht  s 
and  privileges  belonging  thereto  or  connected  therewith  for  the  period 
of  six  months,  and  convey  the  same  to  any  railroad  corporation. 

§  82.  Certificates  of  stock,  may  be  issued  after  foreclosure 
in  certain  cases. —  If  any  person  or  corporation  shall  be  entitled  to 
certificates  of  stock  subscribed  to  and  paid  for  in  any  railroad  corpora- 

37 


RAILROAD  LAW. 

tion  whose  property  and  franchises  have  been  sold  under  mortgage 
foreclosure,  and  such  certificates  have  not  been  issued  before  fore- 
closure, the  officers  of  the  corporation  shall,  at  any  time  within  six 
months  after  the  foreclosure  sale  issue  and  deliver  to  the  person  or 
corporation  entitled  thereto,  upon  demand,  such  certificates  of  stock, 
which  shall  have  all  the  force  and  effect  and  confer  upon  the  holder 
all  the  rights  which  he  would  have  had  if  such  certificates  of  stock 
had  been  issed  at  the  time  of  the  payment  of  the  subscription  th> 

§  83.  Liabilities  of  reorganized  railroad  corporations. — A  railroad  corporation, 
reorganized  under  the  provisions  of  law,  relating  to  the  formation  of  new  or 
reorganized  corporations  upon  the  sale  of  their  property  or  franchise,  shall 
not  be  compelled  or  required  to  extend  its  road  beyond  the  portion  thereof 
constructed,  at  the  time  the  new  or  reorganized  corporation  acquired  title  to 
su  ii  railroad  property  and  franchise,  provided  the  board  of  railroad  commis- 
sioners of  theState  shall  certify  that  in  their  opinion  the  public  interests  umier 
all  the  circumstances  do  not  require  such  extension.  If  such  board  shall  so 
certify  and  shall  file  in  their  office  such  certificate,  which  certificate  shall  be 
irreversible  by  such  board,  such  corporation  shall  not  be  deemed  to  have  in- 
curred any  obligation  so  to  extend  its  road  and  such  certificate  shall  be  a  bar 
to  any  proceedings  to  compel  it  to  make  such  extension  or  to  annul  its  exist 
ence  for  failure  so  to  do,  and  shall  be  final  and  conclusive  in  all  courts  and 
proceedings  whatever.  This  section  shall  not  authorize  the  abandonment  of 
any  portion  of  a  railroad  which  has  been  constructed  and  operated,  or  apply  to 
Kings  county. 

£  84.  All  the  provisions  contained  in  the  several  sections  of  this  act  shall  ex- 
tend, apply  to  and  cover  the  consolidation,  lease,  sale  or  reorganization  of  any 
railroad  or  other  corporation  heretofore  or  hereafter  organized,  under  the  laws 
of  this  State,  and  any  other  State  or  country,  to  build,  lease,  buy,  sell,  main- 
tain or  operate  any  of  the  lines  or  routes  of  railroads,  tunnels,  bridges,  ferries 
or  branches  or  any  part  thereof  mentioned  in  this  article,  and  any  similar  lines 
-or  routes  of  railroad,  tunnels,  bridges,  ferries  or  any  part  thereof,  constructed 
or  to  be  located  and  constructed  in  any  foreign  country. 

Added  by  chap.  921  of  1895.     Took  effect  June  5,  1895. 

ARTICLE  IV. 

STREET   SURFACE   RAILROADS. 

SECTION  90.  Street  surface  railroads  ;  general  provision. 

91.  Consent  of  property  owners  and  local  authorities. 

92.  Consent  of  local  authorities  ;  how  procured. 

93.  Condition   upon   which  consent  shall  be  given  ;  sale  of  franchise  at 

public  auction. 

94.  Proceedings  if  property  owners  do  not  consent. 

95.  Percentage  of  gross  receipts  to  be  paid  in  cities  or  villages ;  report  of 

officers. 

96.  Extension  of  route   over  rivers;  terminus  in   other  counties;  when 

property   owners   withhold   consent ;  supreme   court  may  appoint 
commissioners. 

97.  Use  of  tracks  of  other  roads. 

98.  Repair  of  streets  ;  rate  of  speed  ;  removal  of  ice  and  snow. 

99.  Within  what  time  road  to  be  built. 
100.  Motive  power. 

101    Rate  of  fare. 

102.  Construction  of  road  in  streets  where  other  road  is  built. 

103.  Abandonment  of  part  of  route. 

104.  Contracting  corporations  to  carry  for  one  fare  ;  penalty. 

105.  Effect  of  dissolution  of  charter  as  to  consents. 

38 


KAILROAD  LAW. 

106.  Corporate  rights  saved  in  case  of  failure  to  complete  road;  right 

to    operate    oranches;    conditions;    former     consents     ratified; 
limitations. 

107.  When  sand  may  be  used  on  tracks. 

108.  Road   not   to   be    constructed   upon   ground    occupied   by    public 

buildings  or  in  public  parks. 

109.  Center-bearing  rails  prohibited. 

110.  Eight  to  cross  bridge  substituted  for  bridge  crossed  for  five  years. 

111.  Protection   of   employes. 
llla.Protection  to  employes. 

112.  Local  authorities  may  contract  with  railroad  corporations. 

§  90.  Street  surface  railroads ;  general  provisions. — The  provisions  of  this 
article  shall  apply  to  every  corporation  which,  under  the  provisions  thereof, 
or  of  any  other  law,  has  constructed  or  shall  construct  or  operate,  or  has  been 
or  shall  be  organized  to  construct  or  operate,  a  street  surface  railroad,  or  any 
extension  or  extensions,  branch  or  branches  thereof,  for  public  use  in  the 
conveyance  of  persons  and  property  for  compensation,  upon  and  along  any 
street,  avenue,  road,  highway  or  private  property,  in  any  city,  town 
or  village,  or  in  any  two  or  more  civil  divisions  of  the  State,  and  every  such 
corporation  must  comply  with  the  provisions  of  this  article.  Any  street  sur- 
face railroad  corporation,  at  any  time  proposing  to  extend  its  road  or  to  con- 
struct branches  thereof,  may,  from  time  to  time,  make  and  file  in  each  of  the 
offices  in  which  its  certificate  of  incorporation  is  filed,  a  statement  of  the 
names  and  description  of  the  streets,  roads,  avenues,  highways  and  private 
property  in  or  upon  which  it  is  proposed  to  construct,  maintain  or  operate 
such  extensions  or  branches.  Upon  filing  any  such  statement  and  upon  com- 
plying with  the  conditions  set  forth  in  section  ninety-one  of  the  railroad  law, 
every  such  corporation  shall  have  the  power  and  privilege  to  construct,  ex- 
tend, operate  and  maintain  such  road,  extensions  or  branches,  upon  and  along 
the  streets,  avenues,  roads,  highways  and  private  property  named  and  de- 
scribed in  its  certificate  of  incorporation  or  in  such  statement.  Every  such 
corporation,  before  constructing  any  part  of  its  road  upon  or  through  any 
private  property  described  in  its  articles  of  association  or  certificate  of  incor- 
poration or  statement,  and  before  instituting  any  proceeding  for  the  condem- 
nation of  any  real  property,  shall  make  a  map  and  profile  of  the  route  adopted 
by  it  upon  or  through  any  private  property,  which  map  and  profile  shall  be 
certified  by  the  president  and  engineer  of  the  company,  or  a  majority  of  its 
directors,  and  shall  be  filed  in  the  office  of  the  clerk  of  the  county  in  which 
the  road  is  to  be  constructed,  and  all  provisions  of  section  six  of  the  act  • 
hereby  amended  so  far  as  applicable  shall  apply  to  the  route  so  located.  If 
any  such  street  surface  railroad  company  is  unable  to  agree  for  the  purchase 
of  any  such  real  property,  or  of  any  right  or  easement  therein  required  for 
the  purpose  of  its  railroad,  or  if  the  owner  thereof  shall  be  incapable  of  sell- 
ing the  same,  or  if,  after  diligent  search  and  inquiry,  the  name  and  resi- 
dence of  such  owner  can  not  be  ascertained,  it  shall  have  the  right  to  acquire 
title  thereto  by  condemnation  in  the  manner  and  by  the  proceedings  pro- 
vided by  the  condemnation  law.  Nothing  in  this  section  shall  be  deemed  to- 
authorize  a  street  railroad  corporation  to  acquire  real  property  within  a  city 
by  condemnation. 

Am'd  by  chap.  933  of  1895.     Took  effect  June  6,  1895. 

§  91.  Consent  of  property  owners  and  local  authorities. — A  street  surface 
railroad,  or  extensions  or  branches  thereof  shall  not  be  built,  extended  or 
operated  unless  the  consent  in  writing  acknowledged  or  proved  as  are  deeds 
entitled  to  be  recorded,  of  the  owners,  in  cities  and  villages,  of  one-half,  in 
value,  and  in  towns,  not  within  the  corporate  limits  of  a  city  or  village,  of 
the  owners  of  two-thirds  in  value,  of  the  property  bounded  on,  and  also 
tue  consent  of  the  local  authorities  having  control  of  that  portion  of  a  street 
or  highway  upon  which  it  is  proposed  to  build  or  operate  such  railroad,  exten- 
sion or  branch  shall  have  been  first  obtained.  Such  consents  of  property 
owners  in  the  county  of  Kings  which  shall  be  hereafter  executed,  may  be 
forfeited  unless  within  sixty  days  after  the  execution  thereof,  the  same 
shaii  be  recorded  in  the  office  of  the  register  of  such  county.  Such  register 
is  hereby  directed  upon  the  payment  of  the  proper  fees  to  record  all  consen  s 
left  with  him  for  that  purpose  in  books  to  be  provided  by  him  and  paid 
for  out  of  the  funds  provided  to  meet  the  expenses  of  said  office.  Such  books 
shall  be  indexed  according  to  the  names  of  the  consenting  property  owners 
and  also  according  to  the  names  ol  the  streets,  roads  or  other  highways  upon 
which  the  property  to  which  the  consent  relates  shall  be  hounded  on.  Ji 
case  the  recording  of  such  consents  shall  be  hindered,  delayed  or  prevented 
by  legal  proceedings  in  any  court  or  from  any  other  or  different  cause  not 

39 


RAILKOAD  LAW. 

within  the  control  of  the  corporation  upon  which  such  requirement  is  imposed, 
the  time  for  the  performance  of  such  act  is  hereby  and  shall  be  deemed  to 
be  extended  for  the  period  covered  by  such  hindrance,  delay  or  prevention. 
The  consents  of  property  owners  in  one  city,  village  or  town,  or  in  any  other 
civil  division  of  the  state,  shall  not  be  ef  any  effect  in  any  other  city, 
village  or  town,  or  other  civil  divisions  of  the  state.  Consents  of  property 
owners  heretofore  obtained  to  the  building,  extending,  operating  or  i-h 
of,  motive  power  shall  be  effectual  for  the  purposes  herein  mentioned  an  1 
may  be  deemed  to  be  sufficiently  proved  and  shall  be  entitled  to  be  recorded, 
wherever  suca  consents  shall  have  been  signed,  executed  or  acknowledgea 
before  an  officer  authorized  by  law  to  take  acknowledgments  of  deeds,  or 
before  01  in  the  presence  of  a  subscribing  witness,  and  without  regard  to 
whether  or  not  the  subscribing  witness  shall  have  affixed  his  signature  in  the 
presence  of  the  subscriber,  provided  that  the  proof  of  such  signing,  execution 
or  acknowledgment  shall  have  been  made  by  such  subscribing  witness  in 
the  manner  prescribed  by  chapter  three,  part  two  of  the  revised  statutes. 
In  cities  the  common  council  acting  subject  to  the  power  now  possessed  by 
the  mayor  to  veto  ordinances;  in  villages  the  board  of  trustees,  and  in  towns 
the  commissioner  or  commissioners  of  highways  shall  be  the  local  authoriti*  •-. 
referred  to;  except  that  in  villages  where  the  control  of  the  streets  is  vested 
in  any  other  board  or  authorities,  such  other  board  or  authorities 
shall  be  the  local  authorities  referred  to,  and  the  consent  of  such 
other  board  or  authorities  hereafter  or  heretofore  obtained  shall 
be  sufficient;  if  in  any  city  or  county  the  exclusive  control  of  any 
street,  avenue  or  other  property,  which  is  to  be  used  or  occupied 
by  any  such  railroad,  extension  or  branch,  is  vested  in  any  other 
authority,  the  consent  of  such  authority  shall  also  be  first  obtained. 
The  value  of  the  property  above  specified  shall  be  ascertained  and 
determined  by  the  assessment  roll  of  the  city,  village  or  town  in 
which  it  is  situated,  completed  last  before  the  local  authorities  shall 
have  given  their  consent,  except  property  owned  by  such  city,  vil- 
lage or  town,  or  by  the  state  of  New  York,  or  the  United  States  of 
America,  the  value  of  which  shall  be  ascertained  and  determined  by 
making  the  value  thereof  to  be  the  same  as  is  shown  by  such  assess- 
ment roll  to  be  the  value  of  the  equivalent  in  size  and  frontage  of 
the  adjacent  property  on  the  same  street,  or  highway ;  and  the  con- 
sent of  the  local  authorities  shall  operate  as  the  consent  of  such 
city,  village  or  town,  as  the  owners  of  such  property.  Whenever 
heretofore  or  hereafter  a  railroad  has  been  or  shall  be  constructed 
and  put  in  operation  for  one  year  or  the  motive  power  thereon 
has  been  or  shall  be  changed  and  put  in  operation  for  a 
similar  length  of  time,  such  facts  shall  be  presumptive  evi- 
dence that  the  requisite  consents  of  local  authorities,  property 
owners  and  other  authority  to  the  construction,  maintenance 
and  operation  of  such  railroad  or  change  of  motive  power 
have  been  duly  obtained.  No  consent  of  local  authorities  heretofore 
given  shall  be  deemed  invalid  because  of  any  portion  of  the  road 
or  route  consented  to  not  being  connected  with  an  existing  road 
or  route  of  the  corporation  obtaining  or  acquiring  such  consent 
and  all  statements  of  extension  filed  under  section  ninety  of  this 
article  in  reference  to  the  route  or  part  thereof  described  in  any 
consent  of  local  authorities  are  hereby  ratified  and  confirmed, 
whether  the  same  were  filed  before  or  after  the  obtaining  or  ac- 
quiring of  such  consents,  provided  however  that  nothing  herein  con- 
tained shall  be  construed  to  affect  any  portion  of  a  street  surface 
railroad  which  is  now  in  or  upon  any  portion  of  a  street  which  is 
-antler  the  jurisdiction  of  a  park  department  in  any  city  containing 
a  population  of  over  twelve  hundred  thousand  inhabitants. 

-\mendod  by  ch.   ns   of  1001.     In  effect  May  4,  1901. 
Aim-i-dpd  by  ch.  r>:?7  -  f  L903. 

bner.d        l'v  ch.   (>'>  cf    i!H)o.     In  effect   May  27,   1905. 


THE  RAILROAD  LAW. 

§  92.  Consent  of  local  authorities ;  how  procured.— The 

application  fur  tho  consent  of  the  !•  cal  authorities  shall  he  in  writing 
and  before  acting  therein  such  authorities  shall  give  public  notice 
thereof  and  of  the  time  and  place  when  it  will  firot  be  considered,, 
which  notice  shall  be  published  daily  in  any  city  for  at  least  fourteen 
days  in  two  of  its  daily  newspapers  if  there  be  two,  if  not,  in  one,  to- 
be  designated  by  the  mayor,  and  in  any  village  or  town  for  at  least 
fourteen  days  in  a  newspaper  published  therein,  if  any  there  shall 
be,  and  if  none,  then  daily  in  two  daily  newspapers  if  there  be  two, 
,if  not,  one  published  in  the  city  nearest  such  village  or  town.  tSuch 
consent  must  be  upon  the  expressed  condition  that  the  provisions  of 
this  article  pertinent  thereto  shall  be  complied  with,  and  shall  be 
filed  in  the  office  of  the  clerk  of  the  county  in  which  such  railroad  is 
located.  Whenever  the  consent  of  the  common  council  of  a  city  is 
applied  for,  the  fin-t  consideration,  of  which  notice  i&  hereby  required, 
may  be  by  committee  of  such  common  council.  Any  such  notice, 
publication  or  consideration  heretofore  or  hereafter  given,  made  or 
had  in  substantial  conformity  with  the  requirements  of  this  section, 
is  and  shall  be  sufficient  notice,  publication  and  consideration  for  all 
the  purposes  hereof  notwithstanding  any  conflicting  provision  of  any 
local  or  special  act  or  charter. 
Am'd  by  chap.  434  of  1893. 

§  93.  Condition  upon  which  consent  shall  be  given;  sale  of 
franchise  at  public  auction. — The  consent  of  the  local  authorities  in. 
cities  containing"  twelve  hundred  and  fifty  thousand  inhabitants  or 
more,  according  to  the  last  federal  census  or  state  enumeration,  must 
contain  the  condition  that  the  right,  franchise  and  privilege  of  using 
any  street,  road,  highway,  avenue,  park  or  public  place  shall  be  sold  at 
public  auction  to  the  bidder  who  will  agree  to  give  the  city  the  largest 
percentage  per  annum  of  the  gross  receipts  of  such  corporation,  with  a 
bond  or  undertaking  in  such  form  and  amount  and  with  such  con- 
ditions and  sureties  as  may  be  required  and  approved  by  the  comptrol'er 
or  other  chief  fiscal  officer  of  the  city,  for  the  fulfillment  of  such  agree- 
ment and  for  the  commencement  and  completion  of  its  railroad  within 
the  time  designated  by  law  and  for  the  performance  of  such  additional 
conditions  as  the  local  authorities  in  their  discretion  may  prescribe. 
Whenever  such  consent  shall  provide  for  the  sale  at  public  auction  of 
the  right  to  construct  and  operate  a  branch  or  extension  of  an  existing 
railroad,  such  consent  shall  provide  that  but  one  fare  shall  be  exacted 
f..r  passage  bver  such  branch  or  extension  and  over  the  line  of  road 
which  shn1!  have  applied  therefor;  and  further,  that  if  such  right  shall 
be  purchased  by  any  corporation  other  than  the  applicant,  that  the 
gross  receipts  from  joint  business  shall  be  divided  in  the  proportion  that 
the  Vn.'iih  of  such  extension  or  branch  so  sold  shall  bear  to  the  entire 
length  of  the  road  whether  owned  or  leased  which  shah  have  applied 
therefor  and  of  such  br,-:nc!i  or  extension,  and  that  if  such  right  shall 
be  purchased  by  the  applicant,  tho  pore-en  Tairo  to  be  paid  shall  be  cal- 
fu!:i!o;!  on  s'vh  portion  of  its  gross  receipts  as  shall  bear  the  same  pro- 
portior  to  the  whoV  value  thereof  as  the  length  of  such  extension  or 
.  branch  sha1!  bear  t;>  the  entire  -ength  of  its  road,  whether  owned  or 

41 


THE  RAILROAD  LAW. 

leased.  The  bidder  to  whom  such  right,  franchise  and  privilege  may  be 
sold  must  be  a  duly  incorporated  railroad  corporation  of  this  state, 
organized  to  construct,  maintain  and  operate  a  street  railroad  in  the 
city  for  which  such  consent  may  be  given;  but  no  such  corporation  shall 
be  entitled  to  bid  at  such  sale  unless  at  least  five  days  prior  to  the 
day  fixed  for  such  sale,  or  five  days  prior  to  the  day  to  which  such  sale 
shall  have  been  duly  adjourned,  the  corporation  shall  have  filed  with  the 
comptroller  or  other  chief  fiscal  officer  of  the  city,  a  bond  in  writing  and 
under  seal,  with  sufficient  sureties,  to  be  approved  by  such  comptroller  or 
officer  conditioned  that  if  such  right,  franchise  and  privilege  shall  be  sold 
to  such  corporation,  to  pay  to  the  city  where  sucn  railroad  is  situated  the 
sum  of  fifty  thousand  dollars  as  liquidated  damages  and  not  by  way  of 
penalty  in  the  event  of  the  failure  of  such  bidder  to  fulfill  the  terms 
of  sale,  comply  with  the  provisions  of  this  article  pertinent  thereto, 
and  complete  and  operate  its  railroad  according  to  the  plan  or  plans 
and  upon  the  route  or  routes  fixed  for  its  construction  within  the  time 
hereinafter  designated  for  the  construction  and  completion  of  its  rail- 
road; and  also  conditioned  to  pay  to  the  corporation  first  applying  for 
the  consent,  if  it  shall  not  be  the  successful  bidder,  the  necessary  ex- 
penses incurred  by  such  corporation  prior  to  the  sal*  pursuant  to  the 
requirements  and  direction  of  the  local  authorities,  within  twenty  days 
after  such  sale  and  upon  the  certificate  of  the  comptroller  or  other 
officer  conducting  the  same  as  to  the  sum  or  amount  to  be  paid.  Notice 
of  the  time  and  place  and  terms  of  sale,  and  of  the  route  or  routes  to  be 
sold,  and  of  the  conditions  upon  which  the  consent  of  the  local  authori- 
ties to  the  construction,  operation  and  extension  of  such  street  rail- 
road will  be  given,  must  be  published  by  such  authorities  for  at  least 
three  successive  weeks,  and  in  any  city  having  two  or  more  daily  news- 
papers, at  least  three  times  a  week  in  two  of  such  papers  to  be  designated 
by  the  mayor,  and  in  any  city  where  two  daily  papers  are  not  published, 
at  least  once  a  week  in  a  newspaper  published  therein  to  be  designated 
by  the  mayor.  The  comptroller  or  other  chief  fiscal  officer  of  the  city 
shall  attend  and  conduct  such  sale  and  may  adjourn  the  same,  but  not 
more  than  four  weeks  in  all,  unless  further  adjournments  should,  in 
his  discretion,  be  necessary  by  reason  of  the  pendency  of  legal  proceed- 
ings, and  shall  cancel  any  bid  if  in  excess  of  the  gross  receipts,  leaving 
in  force  the  highest  bid  not  in  excess,  or  if  the  bidder  shall  noi  have 
furnished  adequate  security  entitling  such  bidder  to  bid,  or  shall  other- 
wise fail  to  comply  with  the  terms  and  conditions  of  sale,  and  shall 
resell  the  consent  and  license  in  the  same  manner  as  hereinbefore  pro- 
vided for  the  first  sale.  The  bidder  who  may  build  and  operate  such 
railroad  shall  at  all  times  keep  accurate  books  of  account  of  the  Im-i- 
ness  and  earnings  of  such  railroad,  which  books  shall  at  all  times  be  sub- 
ject to  the  inspection  of  the  local  authorities.  In  the  event  of  the 
failure  or  refusal  of  the  corporation  operating  or  using  such  rai'road 
to  pay  the  rental  or  percentages  of  gross  earnings  agreed  upon,  and  after 
notice  of  not  less  tluin  sixty  days  to  pay  the  same,  the  local  authorities 
interested  therein  may  apply  to  any  court  having  jurisdiction  upon 

42 


THE  RAILROAD  LAW. 

at  least  twenty  days  notice  to  such  corporation,  and  after  it  shall  have 
had  an  opportunity  to  be  heard  in  its  defense,  for  judgment  declaring 
the  consent  and  right  to  operate  and  use  such  railroad  forfeited  and 
authorizing  the  sale  again  of  the  same  in  the  manner  hereinbefore  pre- 
scribed, provided,  however,  that  no  such  resale  of  any  such  consent  and 
right  heretofore  granted  shall  be  authorized  except  upon  the  condition 
that  the  same  shall  be  subject  to  all  liens  and  incumbrances  existing  on 
said  railroads  at  the  time  such  forfeiture  may  have  been  declared. 
All  consents  hereafter  given  by  the  local  authorities,  unless  it  be  other- 
wise provided  in  such  consent  or  in  some  rene.wal  thereof  may  be  for- 
feited at  the  expiration  of  two  years  thereafter,  and  every  consent  by 
the  local  authorities  of  any  city  of  the  first  class  or  of  any  city,  town  or 
village  now  embraced  within  the  corporate  limits  of  any  city  of  the  first 
class  heretofore  given  to  or  acquired  or  owned  by  any  street  surface  rail- 
road corporation,  since  January  first,  eighteen  hundred  and  ninety,  is 
hereby  ratified  and  confirmed,  and  shall  be  deemed  to  be  in  full  force 
and  effect,  and  shall  continue  until  and  including  December  thirty- 
first,  nineteen  hundred  and  three,  when  it  may  be  forfeited  unless  prior 
thereto  the  required  consent  of  property  owners,  or  determinations  by 
the  appellate  division  of  the  supreme  court  in  lieu  thereof,  shall  have 
been  first  obtained.  The  board  of  sinking  fund  commissioners  of  any 
city  shall  have  power  to  reduce,  compromise  or  release  any  obligation  or 
liability  to  the  mayor,  aldermen  and  commonalty  of  such  city  under 
the  provisions  of  chapter  six  hundred  and  forty-two  of  the  laws  of 
eighteen  hundred  and  eighty-six,  or  of  this  chapter  whenever,  in  the 
opinion  of  such  board,  such  release  or  compromise  shall  be  just  or 
equitable,  or  for  the  public  interest,  the  reason  for  any  such  release  or 
compromise  to  be  stated  in  the  recorded  proceedings  of  such  board. 
No  lease  by  any  company  organized  under  section  two  of  the  railroad 
law  and  owning  a  right,  privilege  or  franchise  of  using  any  street,  ave- 
nue, highway  or  public  place  for  railroad  purposes,  which  has  heretofore 
been  sold  under  the  provisions  of  this  section,  hereafter  made  to  any 
street  surface  railroad  company  which  is  not  subject  to  the  payment 
of  any  percentage  pursuant  to  this  section,  and  which  is  not  organized 
for  the  purpose  of  operating  r  railroad  in  a  city  of  the  first  class,  shall 
be  valid  until  the  leased  company  shall  have  filed  in  the  office  of  the 
secretary  of  state  and  in  the  office  of  the  clerk  of  the  county  where  its 
certificate  of  incorporation  is  filed,  its  acceptance  in  writing  and  under 
its  corporate  seal  of  the  provisions  of  this  section  as  now  amended : 
and  upon  such  acceptance  being  filed,  the  total  percentage  amount 
thereafter  to  be  paid  annually  under  this  section  and  under  section 
ninety-five  of  this  act,  shall  be  at  the  rate  of  five  per  centum  of  the 
gross  receipts  derived  from  the  operation  of  the  roads  of  the  lessor 
and  lessee  companies  considered  as  one  system.  The  lessee  company, 
at  the  time  of  filing  its  acceptance  aforesaid,  shall  also  file  in  the 
same  offices  a  bond  to  the  people  of  the  state,  executed  in  duplic:iii- 
by  it  and  a  surety  company  authorized  by  law  to  act  as  surety  on 
bonds  and  undertakings,  in  the  penal  sum  of  fifty  thousand  dollars, 

42a 


THIS  KAILUOAD  LAW. 

and  conditioned  for  the  faithful  payment  annually  of  the  total  per- 
centage aforesaid,  and  such  bond  shall  be  deemed  to  be  a  full  com- 
pliance with  the  condition  for  a  bond  or  undertaking  required  by  this 
section  to  be  provided  for  in  the  conditions  of  the  consent  of  tin-  local 
authorities  and  shall  supersede  any  such  bond  or  undertaking  there- 
tofore given.  Whenever  it  shall  be  desired  to  unite  two  street  surface 
railroad  routes  at  some  point  not  over  one-half  mile  from  such  respec- 
tive lines  or  routes,  and  establish  by  the  construction  of  such  connection 
a  new  route  for  public  travel,  and  the  corporation  or  corporations 
owning  or  using  "such  railroads  shall  consent  to  operate  such  con- 
nection as  a  part  of  a  continuous  route  for  one  fare,  and  it  shall  appear 
to  the  local  authorities  that  such  connection  cannot  be  operated  as  an 
independent  railroad  without  inconvenience  to  the  public,  but  that 
it  is  to  the  public  advantage  that  the  same  should  be  operated  as  a 
continuous  line  or  route  with  existing  railroads,  or  whenever  for  the 
purpose  of  connecting  with  any  ferry  or  railroad  depot,  it  snail  be 
desired  to  construct  an  extension  or  branch  not  more  than  one-half 
mile  in  length,  of  any  street  surface  railroad  corporation,  no  sale  of 
such  franchise  shall  be  made  as  provided  in  this  section,  but  any  con- 
sent of  the  local  authorities  for  the  construction  and  operation  of  such 
connection,  extension  or  branch  shall  provide  that  the  corporation  or 
corporations  operating  such  connection,  extension  or  branch  shall  pay 
into  the  treasury  of  said  city  annually  the  percentage  provided  for 
extensions  or  branches  in  section  ninety-five  of  this  chapter,  for  the 
purposes,  at  the  times,  in  the  manner  and  upon  the  conditions  set 
forth  in  such  section.  The  provisions  of  this  section  as  now  amended 
shall  apply  to  all  cities  of  the  first  class,  but  nothing  herein  contained 
shall  be  construed  as  superseding,  repealing  or  modifying  any  provision 
of  the  charter  of  any  city,  village  or  town,  nor  as  modifying  or  affecting 
the  terms  of  a  certain  contract  bearing  date  January  first,  eighteen  hun- 
dred and  ninety-two,  entered  into  by  and  between  the  city  of  Buffalo 
and  the  various  street  surface  railroad  corporations  therein  named  iu 
such  contract,  except  that  the  provisions  of  this  act  as  amended, 
which  continue  and  confirm  the  consents  of  local  authorities  shall  apply 
to  street  surface  railroads  in  the  city  of  Buffalo,  as  well  as  in  other  cit- 
ies of  the  first-cXass.  This  section  shall  not  modify  or  affect  any  con- 
tract heretofore  entered  into  between  a  street  surface  railroad  corpo- 
ration and  any  city  of  the  third  class,  town  or  village  regulating 
the  payment  of  percentages  or  paving  of  streets,  and  any  city  of  the 
third  class,  town  or  village,  is  hereby  authorized  to  enter  into  any  such 
form  of  contract  with  any  street  surface  railroad  corporation,  and  any 
such  contract  heretofore  entered  into  is  hereby  ratified  and  confirmed. 
The  local  ai'thorities  may,  in  their  discretion,  make  their  consent  to 
depend  upon  any  further  conditions  respecting  other  or  further  security, 
or  deposit,  suitable  to  secure  the  construction,  completion  and  operation 
of  the  railroad  within  any  time  not  exceeding  the  period  prescribed 
in  this  article  and  respecting  the  character,  quality  or  motive  power  of 
the  rriaj  'to  be  completed  and  respecting  the  grouping  of  streets,  avenues 

42b 


THE  RAILROAD  LAW. 

and  highways  into  one  route,  or  into  several  routes,  for  the  purpose  of  a 
single  sale  of  the  franchise,  right  or  privilege  for  all  the  routes  collect- 
ively, or  of  the  separate  sale  for  each  route  or  street,  as  said  local 
authorities  may  think  expedient  and  respecting  the  payment  of  the 
percentage  agreed  to  be  paid  at  the  sale  upon  all  the  lines  operated  by 
the  successful  bidder  within  the  city  and  respecting  any  matter  in- 
volved in  or  affecting1  the  computation  of  percentage  payments  and 
respecting  the  use  of  the  railroads  to  be  constructed  under  the  consent 
by  any  other  company  and  respecting  the  interchange  of  traffic  and 
division  of  fares  between  the  company  operating  such  railroads  and 
any  other  company,  and  respecting  the  application  of  any  provision 
herein  contained  as  to  carriage  of  passengers  for  single  fare  and  the 
division  of  gross  receipts  and  the  payment  of  percentages  to  the  line 
leased  or  operated  under  contract  by  the  applicant  for  an  extension, 
and  also  respecting  any  other  matter  concerning  which,  in  their  judg- 
ment, further  conditions  would  be  for  the  public  interest.  Any  and 
all  consents,  sales  and  proceedings  heretofore  granted,  made  or  taken 
in  substantial  compliance  with  the  provisions  of  this  section,  as  now  last 
amended,  are  hereby  approved,  ratified  and  confirmed,  and  any  pur- 
chaser or  successor  to  or  transferee  of  the  rights  of  the  purchaser  of 
any  right  or  privilege  heretofore  sold  substantially  in  accordance  with 
the  provisions  of  this  section  as  now  amended,  is  authorized  to  acquire 
the  requisite  consents  of  property  owners,  or,  in  lieu  thereof,  determina- 
tions by  the  appellate  division  of  the  supreme  court,  and  to  proceed 
with  the  construction  of  its  road,  at  any  time  within  three  years  here- 
after. 

Amended  by  ch.  494  of  1901.     In  effect  April  23,  1901. 
§  94.  Proceedings  if  property  owners  do  not  consent.— 

If  the  consent  of  property  owners  required  by  any  provision  of  this  article  can  not 
be  obtained,  the  corporation  failing  to  obtain  such  consents  may  apply  to  anv 
general  term  of  the  supreme  court  held  in  the  department  in  which  it  is  proposed 
to  construct  its  road  for  the  appointment  of  three  commissioners  to  determine 
whether  such  railroad  ought  to  be  constructed  and  operated.  Notice  of  such 
application  must,  at  least  ten  days  prior  thereto,  be  served,  personally,  upon  each 
nou  consenting  property  owner  by  delivering  the  same  to  the  person  to  whom  such 
property  is  assessed  upon  such  assessment-roll  or  by  duly  mailing1  the  same,  prop- 
erly folded  and  directed,  to  such  property  owner  at  his  post-office  address  with 
the  postage  prepaid  thereon.  If  the  person  upon  whom  service  is  to  be  made  is 
unknown,  or  his  residence  and  post-office  address  are  unknown  and  can  not  by 
reasonable  diligence  be  ascertained,  service  of  such  notice  may  be  made  by  pub- 
lishing the  same  in  such  newspaper  of  the  county  as  the  court  may  direct,  at  least 
once  a  week  for  two  successive  weeks.  Upon  due  proof  of  service  of  such  notice 
the  court  to  which  the  application  is  made  shall  appoint  three  disinterested  persons, 
who  shall  act  as  commissioners,  and  who  shall,  within  ten  days  after  their  ap- 
pointment, cause  public  notice  to  be  given  of  their  first  meeting  in  the  manner 
directed  by  the  court,  and  may  adjourn  from  time  to  time,  until  all  their  business 
is  completed.  Vacancies  may  be  rilled  by  the  court  after  such  notice  to  parties 
interested  as  it  may  deem  proper  to  be  given;  and  the  evidence  taken  before  as 
well  as  after  the  happening  of  the  vacancy  shall  be  deemed  to  be  properly  before 
such  commissioners.  After  a  public  hearing  of  all  parties  interested,  the  com- 
missioners shall  determine  whether  such  railroad  ought  to  be  constructed  and 
operated,  and  shall  make  a  report  thereon,  together  with  the  evidence  taken,  to 
the  gene-al  term  within  sixty  days  after  appointment,  unless  the  court,  or  a 
judge  thereof,  for  good  cause  shown,  shall  extend  such  time;  and  their  determina- 
tion that  such  road  ought  to  be  constructed  and  operated,  confirmed  by  such  court, 

43 


RAILROAD  LATT. 

shall  be  taken  in  lieu  of  the  consent  of  the  property  owners  hereinbefore  required 
The  commissioners  shall  each  receive  ten  dollars  for  each  day  spent  in  the  per 
formance  of  their  duties  and  their  necessary  expenses  and  disbursements,  which 
shall  be  i«ii<l  by  the  corporation  applying  for  their  appointment. 

§  95.  Percentage  of  gross  receipts  to  be  paid  in  cities  or 
villages  ;  report  of  officers. — Every  corporation  building  or  operat- 
ing a  railroad,  or  a  branch  or  extension  thereof,  under  the  provisions 
of  this  article,  or  of  chapter  252  of  the  laws  of  1884,  within  any  city  of 
the  state  having  a  population  of  1,200,000  or  more,  shall,  for  and  dur- 
ing the  first  five  years  after  the  commencement  of  the  operation  of  any 
portion  of  its  railroad  annually,  on  November  first,  pay  into  the  treas- 
ury of  the  city  in  which  its  road  is  located,  to  the  credit  of  the  sinking 
fund  thereof,  three  per  cent  of  its  gross  receipts  for  and  during  the 
year  ending  September  thirtieth  next  preceding ;  and  after  the 
expiration  of  such  five  years,  make  a  like  annual  payment  into  the 
treasury  of  the  city  to  the  credit  of  the  same  fund,  of  five  per  cent  of 
its  gross  receipts.  If  a  street  surface  railroad  corporation  existing  and 
operating  any  such  railroad  in  any  such  city  on  May  6,  1884,  shall 
have  thereafter  extended  its  tracks  or  constructed  branches  therefrom, 
and  shall  operate  such  branches  or  extensions  under  the  provisions  of 
chapter  252  of  the  laws  of  1884,  or  of  this  article,  such  corporation 
shall  pay  such  percentages  only  upon  such  portion  of  its  gross  receipts 
as  shall  bear  the  same  proportion  to  its  whole  gross  receipts  as  the 
length  of  such  extension  or  branches  shall  bear  to  the  entire  length  of 
its  line.  In  any  other  incorporated  city  or  village  the  local  authorities 
shall  have  the  right  to  require,  as  a  condition  to  their  consent  to  the 
construction,  operation  or  extension  of  a  railroad  under  the  provisions 
of  this  article,  the  payment  annually  of  such  percentage  of  gm>s 
receipts,  not  exceeding  three  per  cent,  into  the  treasury  of  the  city  or 
village  as  they  may  deem  proper.  In  case  of  extension  the  amount  to 
to  be  paid  shall  be  ascertained  in  the  manner  heretofore  provided. 
The  corporation  failing  to  pay  such  percentage  of  its  gross  earnings, 
shall,  after  November  first,  pay  in  addition  thereto  five  per  cent  a 
month  on  such  percentage  until  paid.  The  president  and  treasurer  of 
any  corporation  required  by  the  provisions  of  this  article  to  make  a  pay- 
ment annually  upon  its  gross  receipts  shall,  on  or  before  November 
first  in  each  year,  make  a  verified  report  to  the  comptroller  or  chief 
fiscal  officer  of  the  city  of  the  gross  amount  of  its  receipts  for  the  year 
ending  September  thirtieth,  next  preceding,  and  the  books  of  such 
corporation  shall  be  open  to  inspection  and  examination  by  such 
comptroller  or  officer,  or  his  duly  appointed  agent,  for  the  purpose  of 
ascertaining  the  correctness  of  its  report  as  to  its  gross  receipts.  The 
corporate  rights,  privileges  and  franchises  acquired  under  this  article 
or  such  chapter  by  any  corporation,  which  shall  fail  to  comply  with  all 
the  provisions  of  this  section,  shall  be  forfeited  to  the  people  of  the 

44 


EAILROAD  LAW. 

state,  and  upon  judgment  of  forfeiture  rendered  in  an  action  brought 
in  the  name  of  the  people  by  the  Attorney-General,  shall  cease  and 
determine. 

L.  1884,  ch.  252,  §  8. 

L.  1889,  ch.  564. 

§  96.  Extension  of  route  over  rivers ;  terminus  In  other  counties  ; 
•when  property  owners  -withhold  consent ;  supreme  court  may  ap- 
point commissioners. — Any  street  railroad  in  operation  in  this  state,  which 
shall  bv  a  two  thirds  vote  of  its  directors,  decide  to  extend  ihe  route  of  its  road,  so 
as  to  cross  a  river  over  and  by  any  bridge  now  or  hereafter  constructed  under  the 
provisions  of  any  law  of  this  state,  may  so  extend  their  route  over  and  across  such 
bridge  upon  such  terms  us  may  be  mutually  agreed  upon   between  it  and  such 
bridge  company,  and  may  locate  the  terminus  of  their  roa'l  in  the  county  adjoining 
the  cnc  in  \\lridi  their  road  is  now  loc  'ted  and  in  operation,  upon  first  obtaining 
the  consent  of  such  bridge  company  or  its  lessees,  and  the  consent  of  the  owners  (if 
one-half  in  value  of  the  property  bounded  on,  and  the  consent  also  of  the  local 
authorities  having  the  control  of  that  portion  of  a  street  or  highway  upon  which 
it  is  proposed  to  construct  or  operate  such  railroad,  or  in   case  the  consent  of  such 
property  owners  cannot  be  obtained  the  appellate  division  of  the  supreme  court 
in  the  district  in  which  it  is  proposed  to  be  constructed  may,   upon  application, 
appoint  three  commissioners,  who  shall  determine  after  a  hearing  of  all  parties 
interested,  whether  such  railroad-  ought  to  be  constructed,  or  operated,  and  their 
determination,  confirmed   by   the  court,  may   be   taken   in  lieu   of  the  consent 
of  the   property  owners.     Whenever  a  terminus  of   any  public  viaduct,  bridge 
or  bridges,  or  public   viaduct   connected   with  any    bridge   or   bridges,    hereto- 
fore or  hereafter  constructed  in  and  owned  and   maintained  by  any  city  of  the 
first  ("Irss,  or  town  adjoining  the  same,  is  or  shall  1  e  located  at  or  adjacent  to  or 
within  onc-hnlf  mile  of  the  route  of  any  existing  street  surface  railroad,  the  cor- 
poration own  in  j   cr  operating  such  railroad  may,  irrespective    of  any   provisions 
otherwise  applicable  thereto  eonta'ned  in  any  general  or  local   act,  upon  obtaining 
the  consent  of  the  l»cal  authorities  and  property  owners  as  above  provided,  and 
upon  complying  with  the  provisions  of  the  ra'lroad  law  appli  able  thereto,  extend 
its  road  or  route  and  construct   and  operate  iis  railroad,  lo,  upon  ard  across  such 
viaduct,  bridge  or  bridges  and  approaches  thereto  for  the    purpose  of   connecting 
-with  another  railroad  route  not  more  than  one-half  mile  distant  from  such  bridge 
or  viaduct  so  as  to  nffor-1  a  continuous  ride  for  one  fare,  subject  to  the  provisions 
of  the  railroad  law,  or  for  the  purpose  of  reaching  the  depot,  station  or  terminus  of 
another  railroad  not  more  than  one  half  mile  distant  from  such  bridge  or  viaduct. 
This  section  shall  not  apply  to  any  bridge  over  the  Hudson  or  East  rivers  in  the 
counties  of  New  York  and  Kings,  nor  to  any  bridge  or  viaduct  constructed  under 
the  provisions  of  any  so-called  grade  crossing  law. 

Amended  by  ch.  419  of  1901.  In  effect  April  18,  1901. 
§  97.  Use  of  tracks  of  other  roads.  —  Any  railroad  corporation 
in  this  state,  whose  cars  are  run  and  operated  by  horses  or  other 
motive  power,  authorized  by  this  article,  upon  the  surface  of  the  street, 
excepting  in  the  city  and  county  of  New  York,  may,  for  the  purpose 
of  enabling  it  to  connect  with  and  run  and  operate  its  cars  between 
its  tracks  and  a  depot  or  car-house  owned  by  it,  run  upon,  intersect, 
and  use,  for  not  exceeding  five  hundred  feet,  the  tracks  of  any  other 
railroad  corporation,  the  cars  of  which  are  run  and  operated  in  like 
manner,  with  the  necessary  connections  and  switches  for  the  proper 
working  and  accommodation  of  the  cars  upon  such  tracks,  and  in 
connection  with  such  depot  or  car-house,  upon  paying  therefor  such 
compensation  as  it  may  agree  upon  with  the  corporation  owning  the 
tracks  to  be  so  run  upon,  intersected,  and  used;  and  in  case  such  cor- 
porations can  not  agree  upon  the  amount  of  such  compensation,  the 

45 


RAILROAD   LAW. 

same  shall  be  ascertained  and  determined  in  the  manner  prescribed 
in  the  condemnation  law. 

§  98.  Repair  of  streets  ;   rate  of  speed  ;   removal  of  ice  and 

snow. — Every  street  surface  railroad  corporation  so  long  as  it  sha'l 
continue  to  use  any  of  its  tracks  in  any  street,  avenue  or  public  place 
in  any  city  or  village  shall  have  and  keep  in  permanent  repair  thut 
portion  of  such  street,  avenue  or  public  place  between  its  tracks,  the 
rails  of  its  tracks,  and  two  feet  in  width  outside  of  its  tracks,  under  the 
supervision  of  the  proper  local  authorities,  and  whenever  required  by 
them  to  do  so,  and  in  such  manner  as  they  may  prescribe.  In  case  of 
the  neglect  of  any  corporation  to  make  pavements  or  repairs  after  the 
expiration  of  thirty  days  notice  to  do  so,  the  local  authorities  may 
make  the  same  at  the  expense  of  such  corporation,  and  such  au- 
thorities may  make  such  reasonable  regulations  and  ordinances  as  to 
the  rate  of  speed,  mode  of  use  of  tracks,  and  removal  of  ice  and  snow, 
as  the  interests  or  convenience  of  the  public  may  require.  A  corpora- 
tion whose  agents  or  servants  willfully  or  negligently  violate  such  an 
ordinance  or  regulation,  shall  be  liable  to  such  city  or  village  for  a 
penalty  not  exceeding  five  hundred  dollars  to  be  specified  in  such  or- 
dinance or  regulation. 

§  99.  Within  what  time  road  to  be  built. — In  case  any  such  corpora- 
tion shall  not  commence  the  construction  of  its  road,  or  of  any  ex- 
tension or  branch  thereof,  within  one  year  after  the  consent  of  the  local 
authorities  and  property  owners  or  the  determination  of  the  appellate 
division  of  the  supreme  court  as  herein  required,  shall  have  been  given 
or  renewed,  and  shall  not  complete  the  same  within  three  years  after  such 
consents,  or  determination  shall  have  been  obtained,  its  rights,  privileges 
and  franchises  in  respect  of  such  railroad  or  extension  or  branch,  as  the 
case  may  be,  may  be  forfeited.  If  the  performance  of  any  act  required 
by  the  railroad  law  or  any  prior  acts  within  the  times  therein  prescribed, 
ie  hindered,  delayed  or  prevented  by  legal  proceedings  in  any  court,  such 
court  may  also  extend  such  time  for  such  period  as  the  court  shall  deem 
proper,  or  if  the  performance  of  any  act  required  by  said  article  within 
the  times  therein  prescribed  is  hindered,  delayed  or  prevented  by  works 
of  public  improvement,  or  from  any  other  or  different  cause,  not  within 
the  control  of  the  corporation  upon  which  such  requirement  is  imposed, 
the  time  for  the  performance  of  such  act  is  hereby  and  shall  be  deemed 
to  be  extended  for  the  period  covered  by  such  hindrance,  delay  or  pre- 
vention. The  time  for  compliance  with  any  requirement  in  this  or  any 
former  act,  by  a  street  surface  railroad  corporation  incorporated  for  the 
purpose  of  constructing  a  street  surface  railroad  and  which  has  prior 
to  the  passage  of  this  act  obtained  or  shall  prior  to  June  30th,  1903  obtain 
•uch  consents  or  determination  is  hereby  extended  until  June  30th,  1904. 

Amended  by  chap.   434  of   1893. 

Amended  by  chap.  209,  of  1902.    In  effect  March  25,  1902. 

§  100.  Motive  power. — Any  street  surface  railroad  may  operate  any 
portion  of  its  road  by  animal  or  horse  power,  or  by  cable,  electricity,  or 
any  power  other  than  locomotive  steam  power,  which  said  locomotive 
steam  power  is  primarily  generated  by  the  locomotive  propelling  the 
cars,  and  in  the  use  of  which  either  escaping  steam  or  smoke  is  visible, 
which  may  be  approved  by  the  state  board  of  railroad  commissioners, 
and  consented  to  by  the  owners  of  one-half  of  the  property  bounded  on 
that  portion  of  the  railroad,  with  re-peet  to  which  a  change  of  motive 
power  is  proposed;  and  if  the  consent  of  such  property  owners  cannot 
be  obtained,  the  determination  of  three  disinterested  commissioners, 
appointed  by  the  appellate  division  of  the  supreme  court  of  the  depart- 

46 


THE  RAILROAD  LAW. 

merit  in  which  such  railroad  is  located,  in  favor  of  such  motive  powei, 
confirmed  by  the  court,  shall  be  taken  in  lieu  of  the  consent  of  the 
property  owners.  The  consent  of  the  property  owners  shall  be  obtained 
and  the  proceedings  for  the  appointment  and  the  determination  of  the 
•commissioners  and  the  confirmation  of  their  report  shall  be  conducted 
in  the  manner  prescribed  in  sections  ninety-one  and  ninety-four  of 
this  article,  so  far  as  the  same  can  properly  be  made  applicable  thereto. 
Any  railroad  corporation  making  a  change  in  its  motive  power  under 
this  section,  may  make  any  changes  in  the  construction  of  its  road  or 
roadbed  or  other  property  rendered  necessary  by  the  change  in  its 
motive  power.  Where  a  street  surface  railroad  in  the  counties  of 
Herkimer  and  Hamilton  is  located  wholly  outside  the  limits  of  an 
incorporated  city  or  village,  such  railroad  may,  with  the  approval  of  the 
state  board  of  railroad  commissioners  be  operated  by  locomotive  steam 
power,  provided  that  such  steam  power  is  generated  by  oil  from  and 
including  April  fifteenth  to  and  including  November  thirtieth,  and  by 
either  oil  or  coal  from  and  including1  December  first  to  and  including 
April  fourteenth. 

Amended  by  chap.  553  of  1901.     In  effect  April  25,  1901. 

§  101.  Rate  of  fare. — No  corporation  constructing  and  operating  a  railroad 
under  the  provisions  of  this  article,  or  of  chapter  two  hundred  and  fifty-two  ol 
the  laws  of  eighteen  hundred  and  eighty-four,  shall  charge  any  passenger  more 
than  five  cents  for  one  continuous  ride  from  any  point  on  its  road,  or  on  -any  roau, 
line  or  branch  operated  by  it,  or  under  its  control,  to  any  other  point  thereof,  or 
any  connecting  branch  thereof,  within  the  limits  of  any  incorporated  city  or  vil- 
lage. Not  more  than  one  fare  shall  be  charged  within  the  limits  of  any  such  city 
or  village,  for  passage  over  the  main  line  of  road  and  any  branch  or  extension 
thereof  if  the  right  to  construct  such  branch  or  extension  shall  have  been  acquired' 
under  the  provisions  of  such  chapter  or  of  this  article;  except  that  in  any  city  of 
the  third  class,  or  incorporated  village,  it  shall  be  lawful  for  such  corpora; ion  to 
charge  and  collect  as  a  maximum  rate  of  fare  for  each  passenger,  ten  cents,  whore 
such  passenger  is  carried  in  a  car  which  overcomes  an  elevation  of  at  least  four 
hundred  and  fifty  feet  within  a  distance  of  one  and  a  half  miles.  This  section 
shall  not  apply  to  any  part  of  any  road  constructed  prior  to  May  six,  eighteen 
hundred  and  eighty-four,  and  then  in  operation,  unless  the  corporation  owning 
the  same  shall  have  acquired  the  right  to  extend  such  road,  or  to  construct 
branches  thereof  under  such  chapter,  or  shall  acquire  such  right  under  the  pro- 
visions of  this  article,  in  which  event  its  rate  of  fare  shall  not  exceed  its  author. 
ized  rate  prior  to  such  extension.  The  legislature  expressly  reserves  the  right  to 
regulate  and  reduce  the  rate  of  fare  on  any  railroad  constructed  and  operated 
wholly  or  in  part  under  such  chapter  or  under  the  provision*  of  this  article. 

Am'd  by  chap.  688  of  1897. 

§  102.  Construction  of  road  in  street  -where  other  road 
is  built. — No  street  surface  railroad  corporation  shall  construct,  *  x- 
tend  or  operate  its  road  or  tracks  in  that  portion  of  any  street,  avenue, 
road  or  highway,  in  which  a  street  surface  railroad  is  or  shall  be  law- 
fully constructed,  except  for  necessary  crossings,  or,  in  cities,  v)llages 
and  towns  of  less  than  one  million  two  hundred  and  fifty  thousand  in- 
habitants over  any  bridges,  without  first  obtaining  the  consent  of  the 
corporation  owning  and  maintaining  the  same,  except  that  any  street 
surface  railroad  company  may  use  the  tracks  of  another  street  surface 

4" 


UAIL..UAD    LAW. 

railroad  company  for  a  distance  not  exceeding  one  thousand  feet,  and 
if  in  a  city  having  a  population  of  less  than  thirty-five  thousand  in- 
habitants, except  Long  Island  City,  for  a  distance  not  exceeding  fifteen 
hundred  feet,  ir-d  in  cities,  villages  and  towns  of  le.ss  than  one  million 
two  hundred  and  fifty  thousand  inhabitants,  shall  have  the  right  t«> 
lay  its  tracks  upon,  and  run  over  and  use  any  bridges  used  wholly  or 
in  pnrt  as  a  foot-bridge,  whenever  the  court  upon  an  application  for 
commissioners  shall  be  satisfied  that  such  use  is  actually  necessary  to 
connect  main  portions  of  a  line  to  be  constructed  or  operated  as  .  n 
independent  railroad,  or  to  connect  said  railroad  with  a  ferry,  or  with 
another  existing  railroad,  and  that  the  public  convenience  requires  the 
same,  in  which  event  the  right  to  use  shall  only  be  given  for  a  com- 
pensation to  an  extent  and  in  a  manner  to  be  ascertained  and  deter- 
mined by  commissioners  to  be  appointed  by  the  courts  as  is  provided 
in  the  condemnation  law,  or  by  the  board  of  railroad  commissioners 
in  cases  where  the  corporations  interested  shall  unite  in  a  request  lor 
such  board  to  act.  Such  commissioners  in  determining  the  compen- 
sation to  be  paid  for  the  use  by  one  corporation  of  the  tracks  of  another 
fhall  consider  and  allow  for  the  use  of  the  tracks  for  all  injury  and 
damage  to  the  corporation  whose  tracks  may  be  so  usod.  Any  street 
surface  railroad  corporation  may,  in  pursuance  of  a  unanimous  vote  of 
the  stockholders  voting  at  a  special  meeting  called  for  that  purpose  by 
notice  in  writing,  signed  by  a  majority  of  the  directors  of  such  cor- 
poration, stating  the  time,  place  and  object  of  the  meeting,  and  serv- 
ing upon  each  stockholder  appearing  as  such  upon  the  books  of  the 
corporation,  personally  or  by  mail,  at  his  last  known  post-office 
address,  at  least  sixty  days  prior  to  such  meeting,  guarantee  the  bonds 
of  any  other  street  surface  railroad  corporation  whose  road  is  fully  or 
partly  in  the  same  city  or  town  or  adjacent  cities  or  towns. 

Am'd  by  chap.  693  of  1894.     Took  effect  May  12,  1894. 

§  103.  Abandonment  of  part  of  route. — Any  street  surface  rail- 
road corporation  may  declare  any  portion  of  its  route  which  it  may 
deem  no  longer  necessary  for  the  successful  operation  of  its  road  and 
convenience  of  the  public  to  be  relinquished  or  abandoned.  Such 
declaration  of  abandonment  must  be  adopted  by  the  board  of  direct- 
ors of  the  corporation  under  its  seal  which  shall  be  submitted  to  the 
stockholders  thereof  at  a  meeting  called  and  conducted  in  the  same 
manner  as  required  by  law  for  meetings  of  stockholders  for  the  ap- 
proval of  .leases  by  railroad  corporations  for  the  use  of  their  respect- 
ive roads.  If  the  stockholders  shall,  at  such  meeting,  ratify  and 
adopt  such  declaration  of  abandonment,  the  secretary  of  the  company 
shall  so  certify  under  the  seal  of  the  corporation,  upon  such  declara- 
tion. Such  declaration  shall  then  be  submitted  to  the  board  of  railroad 
commissioners  for  its  approval,  and  if  approved  by  such  board,  such 
approval  shall  be  indorsed  therein  or  annexed  thereto  and  the  declara 

48 


RAILROAD  LAW 

tion  so  certified  and  indorsed  shall  be  filed  and  recorded  in  the  office 
of  the  secretary  of  state,  and  from  the  time  of  such  filing,  such  por- 
tion of  the  route  designated  in  the  declaration  shall  be  deemed  to  be 
abandoned. 

Am'd  by  chap.  478  of  1900.    In  effect  April  17,  1900. 

Former  section  103  has  been  omitted  because  embraced  in  section  78.  The  new 
section  embodies  that  part  of  chapter  532  of  1889  which  relates  to  the  abandon- 
ment of  route. 

§  104.  Contracting  corporations  to  carry  for  one  fare ; 
penalty. —  Every  such  corporation  entering  into  such  contract  shall 
cany  or  permit  any  other  party  thereto  to  carry  between  any  two 
points  on  the  railroads  or  portions  thereof  embraced  in  such  coiitrac( 
'any  passenger  desiring  to  make  one  continuous  trip  between  such 
points  for  one  single  fare,  not  higher  than  the  fare  lawfully  charge- 
able by  either  of  such  corporations  for  an  adult  passenger.  Every 
such  corporation  shall  upon  demand,  and  without  extra  charge,  give  tc 
each  passenger  paying  one  single  fare  a  transfer,  entitling  such  pas- 
senger to  one  continuous  trip  to  any  point  or  portion  of  any  railroad 
embraced  in  such  contract,  to  the  end  that  the  public  convenience 
may  be  promoted  by  the  operation  of  the  railroads  embraced  in 
such  contract  substantially  as  a  single  railroad  with  a  single  rate 
of  fare.  For  every  refusal  to  comply  with  the  requirements  of  this 
section  the  corporation  so  refusing  shall  forfeit  fifty  dollars  to  the 
aggrieved  party.  The  provisions  of  this  section  shall  only  apply  to 
railroads  wholly  within  the  limits  of  any  one  incorporated  city  or 
village. 

Former  section  105  ;  104  having  been  omitted  because  embraced  in  section  78. 

§  105.  Effect  of  dissolution  of  charter  as  to  consents. —  When- 
ever any  street  surface  railroad  corporation  shall  have  been  dissolved 
or  annulled,  or  its  charter  repealed  by  an  act  of  the  legislature,  the 
consent  of  owners  of  property  bounded  on,  and  the  consent  of  the  local 
authorities  having  the  control  of  that  portion  of  a  street  or  highway 
upon  which  the  railroad  of  such  corporation  shall  have  been  theretofore 
constructed  and  operated,  and  the  order  of  the  general  term  confirm- 
ing the  report  of  any  commissioner  that  such  railroad  ought  to  be  con- 
structed or  operated,  shall  not,  nor  shall  either  thereof,  be  deemed  to 
be  in  any  way  impaired,  revoked,  terminated  or  otherwise  affected  by 
such  act  of  dissolution,  annulment  or  repeal,  but  the  same  and  each 
thereof  shall  continue  in  full  force,  efficacy  and  being.  The  right  to 
the  further  enjoyment  and  to  the  use  thereof,  subsequent  to  such  act 
of  dissolution,  annulment  or  repeal,  and  of  all  the  powers,  privil^es 
and  benefits  therein  or  thereby  created,  shall  be  sold  at  public  auction 
by  the  local  authorities  within  whose  jurisdiction  such  railroads  shall 

49 


RAILROAD   LAW.  ' 

l.o,  i.i  the  >-aine  manner  as  is  piovidcd  in  section  ninety-three  of  this 
anicle.  When  such  sale  sli'all  have  been  so  made,  the  purcha-i-r 
thereat  shall  have  the  right  to  the  further  enjoyment  and  use  of  Midi 
consents  and  orders,  and  of  each  thereof,  and  of  all  the  poweis, 
privileges  and  benefits  therein  or  thereby  created,  in  like  manner  as 
if  such  purchaser  had  been  originally  named  in  such  consents,  repoits 
jiiid  (.rder; ;  if  such  purchaser  shall  be  otherwise  authorized  by  law  to 
construct,  maintain  a  d  operate  a  sheet  surface  railroad  within  the 
municipality  wL.hin  which  such  railroad  shall  be. 

Former  t-ectiou  1U6. 

$  106.  Corporate  rights  saved  in  case  of  failure  to  complete 
road ;  right  to  operate  branches ;    conditions  ;  former  consents 
ratified;   limitations. —  TLs  corporate  existence  of  and  powers  ol 
every  street  surface  railroad  corporation,  which  has  completed  a  rail- 
road upon  the  greater  portion  of  the  route  designated  in  its  certificate 
of  incorporation,  within  ten  years  from  the  date  of  filingsuch  certificate 
in  the  office  of  the  Secretary  of  State,  and  which  has  operated  such 
completed  portion  of  its  railroad  continuously  for  a  period  of  five  y»i;u> 
last  past,  and  is  now  operating  the  same,  shall  continue  with  like  force 
and  effect,  as  though  it  had  in  all  respects  complied  with  the  provisions 
of  law  with  reference  to  the  time  when  it  should  have  fully  completed 
its  road.     Every  such  corporation  shall  have  the  right  to  operate  any 
extensions  and  branches  of  its  railroad,  now  constructed  and  operated 
by  it,    which    have    been   so    constructed  and  operated  by  it,  for  a 
period  of  ten  years  last  past,  with  like  force  and  effect,  as  though  the 
route  of  such  extensions  and  branches  were  designated  in  its  certificate 
of  incorporation.     But  every  such  street  railroad  corporation  is  author- 
i^ed  to  operate  such  railroad  and  any  extensions  or  branches  then -of, 
upon  condition  that  it  is  heretofore,  or  shall  hereafter,  obtain  the  con* 
sent  of  the  local  authorities  having  the  control  of  that  portion  of  the 
streets,  avenues  or  highways  included  in  such  railroad,  or  any  extension  or  brandies 
thereof,  to  the  construction  and  operation  of  the  same,  and  also  upon  the  condi 
tion  that  it  has  heretofore  or  shall  hereafter  first  obtain  the  consent  of  the  owm-rs 
of  one  half  in  value  of  the  property  bounded  on  the  portion  of  the  streets,  avenues 
or  highways  included  in  the  route  of  such  railroad,  or  any  extension  or  bra; 
thereof,  to  the  construction  and  opera1  ion  of  the  same,  or  in  case  the  con^ei  t  of 
such  property  owners  cannot  be  obtained,  the  appellate  division  of  the  supu-me 
court  of  the  department  in  which  such  railroad  or  any  extension  or  brajr-h  thereof 
is  located,  may,   upon   application,  appoint  three  commissioners  -who  shall  deter- 
mine, after  a  hearing  of  sill  the  parties   interested,  whether  such  railroad  ought  to 
be  constructed  or  operated,  and  their  determination,  confirmed  by  the  court,  may 
be  taken  in  lieu  of  the  consent  of  the  property  owners.     If  any  street  surface  rail- 
road corporation,  shall  have  made  and  filed  a  statement  or  statements  of  pro 
extensions  or  branches  embracing  a  line  from  the  boundary  of  a  city  or  village  to 
the  boundary  of  another  city  or  village  generally  parallel  with   the  u.ute  spe<  iiie •! 
in  its  certificate  of   incorporation   and   generally  distant  not   more  than  ore  haH 
mile  therefrom,  nnd  shall  have  made  and  filed  an  agreement  of  consolidation  with 
some  other  street  surface  railroad  corporation  forned  to  build  a  street  railroad  up- 
on a  route  continuous  or  connecting  w'th  one  or  more  of  the  routes  described  in 
such  statement  or  statements  of  proposed  extensions  or  branches,  and  thereafter 
there  shall  have  oeen  constructed  and  operated  for  a  period  of  four  years  a  street 
surface  railroad  from  suoh  city  or  village  to  such  other  city  or  village  upon  a  line 
embraced  in  any  such  proposed  extensions  or  branches,  such  consolidated  corpora- 

50 


RAILROAD  LAW. 

tion  may  relinquish  and  abandon  any  unconstructed  route  or  unconstructed 
portions  of  route  specified  in  the  certificate  of  incorporation  or  in  any 
statements  of  proposed  extensions  or  branches  of  such  first  mentioned  corpora- 
tion by  filing  in  the  office  of  the  secretary  of  state  a  copy  of  a  resolution  of 
the  board  of  directors  of  such  consolidated  corporation  certified  by  its  presi- 
dent and  secretary,  declaring  such  unconstructed  route  or  unoonstructed  por- 
tions of  route  relinquished  and  abandoned,  and  thereupon  the  corporate  rights, 
powers  and  franchises  of  such  consolidated  corporation  shall  be  and  continue 
the  same  as  though  the  certificate  of  incorporation  of  such  constituent  cor- 
poration had  specified  the  constructed  and  not  the  unconstructed  portions  of 
such  route  and  proposed  extensions  and  branches.  All  consents  heretofore 
given,  or  grants  made  by  local  authorities  having  the  control  of  the  portion 
of  any  street,  avenue  or  highway  included  in  the  route  of  such  railroad,  or 
any  extensions  or  branches  thereof,  to  any  such  street  surface  railroad  cor- 
poration, are  hereby  ratified  and  confirmed  and  declared  valid.  This  section 
shall  be  applicable  to  any  corporations  whose  lines  are  wholly  within  any 
towns,  cities  or  villages  having  less  than  twenty  thousand  inhabitants.  This 
section  shall  not  apply  to  or  affect  any  railroad  corporation  in  the  city  of 
New  York;  nor  any  special  grant  made  to  or  authority  conferred  upon  any 
street  surface  railroad  corporation  by  any  law  of  this  state;  nor  any  pending 
litigation;  nor  shall  it  impair  existing  rights,  privileges  or  franchises  of  any 
street  surface  railroad  corporation. 

Amended  by  chap.  198  of  1900.     In  effect  March  23,  1900. 

§  107.  When  sand  may  be  used  on  tracks. — The  owner  or  operator  of  any 
street  surface  railroad  in  cities  of  this  state,  may  place  upon  the  space  between 
the  rails,  and  upon  the  rails  of  such  road  sand  in  sufficient  quantities  to 
prevent  the  horses  traveling  thereon  from  slipping,  and  to  enable  cars  operated 
by  mechanical,  or  electrical  appliances  to  be  safely  and  properly  operated. 
The  owner  or  operator  of  any  street  surface  railroad  in  cities  of  this  state 
may  use  salt  in  necessary  quantities,  upon  the  rails  of  all  the  switches, 
curves,  turnouts  and  crossovers,  between  the  first  day  of  November  of  each 
year  and  the  first  day  of  May  following,  for  the  removal  of  snow  and  ice 
therefrom  and  to  prevent  the  same  from  freezing.  The  quantity  of  salt  to 
be  used  and  the  manner  of  applying  salt  to  the 'rails,  to  be  under  the  direc- 
tion of  the  city  officials  having  charge  of  the  streets  of  said  cities.  Am'd  bv 
ch.  491  of  1899. 

§  108.  Road  not  to  be  constructed  upon  ground  occupied  by  public  buildings 
or  in  public  parks. — No  street  surface  railroad  shall  be  constructed  or 
extended  upon  ground  occupied  by  buildings  belonging  to  any  town,  city, 
county  or  to  the  state,  or  to  the  United  States,  or  in  public  parks,  except 
in  tunnels  to  be  approved  by  the  local  authorities  having  control  of  such  parks. 
Provided  however  that  the  commissioners  of  the  state  reservation  at  Niagara, 
by  and  with  tne  consent  of  the  commissioners  of  the  land  office,  may  construct 
without  expense  to  the  state  street  railroad  tracks  upon  and  along  that  part 
of  the  riverway,  so  called,  between  Falls  and  Niagara  streets  in  the  city  of 
Niagara  Falls,  and  in  their  discretion  may  grant  revokable  licenses  to  street 
surface  railroad  companies  to  use  such  tracks  upon  such  terms  as  said 
commissioners  may  prescribe.  Am'd  by  ch.  710  of  1899. 

§  109.  Center-bearing  rails  prohibited. — No  street  surface  railroad  corpora- 
tion shall  hereafter  lay  down  in  the  streets  of  any  incorporated  city  or  village 
of  this  state  what  are  known  as  "center-bearing"  rails;  but  in  all  cases, 
whether  in  laying  new  track  or  in  replacing  old  rails,  shall  lay  down  "grooved  " 
or  some  other  kind  of  rail  not  "  center-bearing,"  approved  by  the  local  author- 
ities. Such  grooved  or  other  rail  shall  be  of  such  shape  and  so  laid  as  to 
permit  the  paving  stones  to  come  in  close  contact  with  the  projection  which 
serves  to  guide  the  flange  to  the  car  wheel. 

\Yli<M-r  in  any  city,  the  duty  of  repairing  and  repaying  shvels.  as 
distinguished  from  the  authorization  of  such  paving,  repairing  and 
repaving,  is  by  law  vested  in  any  local  authority  other  than  the  com- 

51 


RAILROAD  LAW. 

mon  council  of  such  city,  such  other  local  authority  shall  be  the 
local  authority  referred  to  in  this  section. 
Amended  1892;  completely  changed. 

§  no.  Right  to  cross  bridge  substituted  for  bridge  crossed  for 
five  years. — Should  any  street  surface  railroad  company  have 
crossed  any  bridge  as  a  part  of  its  route  for  a  period  of  more  than 
five  years  and  should  any  other  bridge  be  substituted  therefor  at 
any  time,  such  company  shall  have  the  right  to  cross  such  sub- 
stituted bridge  and  to  lay  and  use  railway  tracks  thereon  fur  the 
transit  of  its  cars  and  to  make  all  changes  and  extensions  of  its 
route  subject  to  all  the  provisions  of  this  act,  as  the  convenient 
operation  of  its  cars  and  the  public  convenience  may  require. 

Added  in  1892. 

§  in.  Protection  of  employees. — Every  corporation  operating 
a  street  surface  railroad  in  this  state,  except  such  as  operate  a 
railroad  or  railroads  either  in  the  borough  of  Manhattan  or  Brook- 
lyn, in  flie  city  of  New  York,  shall  cause  the  front  and  rear  plat- 
forms of  every  passenger  car  propelled  by  electricity,  cable  or 
compressed  air,  operated  on  any  division  of  such  railroad  which 
extends  in  or  between  towns  or  outside  of  city  limits,  during  the 
months  of  December,  January,  February  and  March,  except  cars 
attached  to  the  rear  of  other  cars,  to  be  enclosed  from  the  fronts 
of  the  platforms  to  the  fronts  of  the  hoods,  so  as  to  afford  pro- 
tection to  any  person  stationed  by  such  corporation  on  such  plat- 
forms to  perform  duties  in  connection  with  the  operation  of  such 
cars.  Every  corporation  or  person  using  and  operating  a  car  in 
violation  of  this  section  shall  be  liable  to  a  penalty  of  twenty -five 
dollars  per  da}'  for  each  car  so  used  and  operated,  to  be  collected  in 
an  action  brought  by  the  attorney-general  and  to  be  paid  to  the 
treasurer  of  the  state  of  New  York,  or  in  a  suit  by  the  attorney 
of  the  municipality  in  which  the  violation  of  the  provision  of  this, 
act  occurs,  to  be  paid  in  the  treasury  of  such  municipality. 

§  2.  All  street  surface  railroad  passenger  cars  hereafter  pur- 
chased, built  or  rebuilt  and  operated  in  the  state  of  New  York  on 
a  ad  after  the  passage  of  this  act,  except  those  owned  by  any  < 
pany  operating  either  in  the  borough  of  Manhattan  or  Brooklyn, 
in  the  city  of  Xew  York  shall  be  constructed  in  accordance  with 
the  provisions  of  section  one  of  this  act. 

§  3.  This  act  shall  take  effect  December  first,  nineteen  hundred 
and  four.  Except  that  where  the  cars  of  any  corporation  affected 
Jby  section  one  of  this  act  are  operated  wholly  in  cities  other  than 

51a 


RAILROAD  LAW. 

the  boroughs  of  Manhattan  or  Brooklyn  in  the  city  of  New  York, 
the  cars  belonging  to  the  corporations  so  operated  shall  be 
equipped  with  the  enclosures  provided  for  in  section  one  of  this 
act  as  follows,  viz. :  One-third  thereof  before  December  first,  nine- 
teen hundred  and  four,  one-third  thereof  after  December  first, 
nineteen  hundred  and  four  and  before  December  first,  nineteen 
hundred  and  five,  and  Hie  remaining  one-third  thereof  after  De- 
cember first,  nineteen  hundred  and  five,  and  before  December  first, 
nineteen  hundred  and  six. 
Added  by  ch.  325  of  1903. 

§  ma.  Protection  to  employees. — Every  corporation  operating 
a  street  surface  railroad  in  the  counties  of  Albany  and  Rensselaer 
shall  cause  the  front  and  rear  platforms  of  every  car  propelled  by 
electricity,  cable  or  compressed  air.  during  the  months  of  Decem- 
ber, January,  February  and  March,  except  cars  attached  to  the 
rear  of  other  cars,  to  be  enclosed  from  the  front  and  at  least  one 
side  of  the  platform  to  the  hood,  so  as  to  afford  protection  to  any 
person  stationed  by  such  corporation  or  person  on  such  platforms 
to  perform  duties  in  connection  with  the  operation  of  such  cars. 
Platforms  on  cars  on  such  street  surface  railroads  used  more  than 
one  mile  outside  the  limits  of  a  city  shall  be  completely  enclosed 
from  platform  to  hood.  Every  corporation  using  and  operating  a 
car  in  violation  of  this  section  shall  be  liable  to  a  penalty  of 
twenty-five  dollars  per  day  for  each  car  so  used  and  operated  to 
be  collected  by  the  people  to  the  use  of  the  poor  of  the  county 
in  which  such  corporation  has  itis  principal  office,  in  an  action 
brought  by  the  attorney-general  or  the  district  attorney  of  such 
county.  The  supreme  court  may,  on  the  application  of  a  citizen, 
direct  the  district  attorney  to  bring  such  action. 

Added  by  ch.  426  of  1903.     In  effect  Sept.  1,  1903. 

§  112.  The  board  of  estimate  and  apportionment,  or  if  such 
board  do  not  exist,  the  local  authorities  which  have  power  to 
make  appropriation  of  moneys  to  be  raised  by  taxation,  iu  any 
city  of  the  first  class,  shall  have  the  power  in  their  discretion,  to 
enter  into  a  contract  or  contracts  on  behalf  of  the  city  with  any 
railroad  corporation  or  corporations  owning  or  operating  street 
surface  railroads  or  other  railroads  in  such  city,  for  the  purpose 
of  adjusting  any  or  all  differences  now  existing  between  such 
corporation  or  corporations  and  such  city  with  respect  to  car 
license  fees,  percentages  upon  gross  earnings,  rentals  and  any 
other  payments,  other  than  taxes  upon  real  and  personal  prop- 

51b 


EAILROAD  LAW. 

erty  and  capital  stock,  payable  or  claimed  to  be  payable  to  the 
city  under  existing  acts  of  the  legislature,  municipal  or  iinan 
grants  by,  or  contracts  with,  the  municipal  authorities  <>r  other- 
wise; and  any  such  contract  may  provide  for  the  payment  of  an 
annual  amount  to  be  ascertained  as  in  such  contract  provided  in 
lieu  of  any  or  all  payments  of  any  of  the  classes  hereinbefore 
mentioned,  other  than  taxes.  Any  such  contract  which  shall  b2 
with  a  corporation  operating  lines  of  railroad  by  lease  may 
provide  for  an  annual  payment,  to  be  ascertained  as  in  such 
contract  provided,  which  shall  be  in  lieu  of  any  or  all  of  the 
payments  of  any  or  all  of  said  classes,  other  than  taxes  upon 
real  and  personal  property  and  capital  stock,  which  wrould  other- 
wise be  payable  in  respect  of  the  leased  lines  so  long  as  the  lease 
or  leases  thereof  shall  continue.  The  annual  payments  provided 
for  in  any  contract  made  under  the  authority  of  this  act  shall, 
so  long  as  such  contract  is  in  force,  supersede  the  payments 
which  would  otherwise  be  payable  by  the  corporation  or  cor- 
porations making  such  contract  and  in  lieu  of  which  the  annual 
payments  provided  for  in  such  contract  are  substituted.  Any 
contract  made  hereunder  may,  with  the  approval  of  the  muni- 
cipal authorities  by  whom  the  contract  was  made  or  their  suc- 
cessors in  office,  be  modified  from  time  to  time  by  the  parties 
thereto  for  the  purpose  of  meeting  changed  conditions.  Xo  con- 
tract shall  be  made  or  modified  hereunder  without  the  written 
consent  and  approval  of  the  mayor  and  of  the  comptroller  or 
other  chief  financial  officer  of  the  city. 

Added  by   ch.  651   of  1905.     In  effect  May  27,   1905. 

§  112.  Protection  of  employees  in  the  counties  of  Kings  and 
Queens. — -Every  corporation  operating  a  street  surface  railroad 
in  the  counties  of  Kings  or  Queens,  shall  cause  the  front  and 
rear  platforms  of  every  passenger  car  propelled  by  electricity, 
cable  or  compressed  air,  operated  on  any  division  of  such  rail- 
road during  the  months  of  December,  January,  February  and 
March,  except  cars  attached  to  the  rear  of  other  cars,  to  be 
enclosed  from  the  fronts  of  the  platforms  to  the  fronts  of  the 
hoods  so  as  to  afford  protection  to  any  person  stationed  by 
such  corporation  on  such  platforms  to  perform  duties  connected 
with  the  operation  of  such  cars.  Every  corporation  or  person 
using  and  operating  a  car  in  violation  of  such  section  shall  be 
liable  to  a  penalty  of  twenty-five  dollars  per  day  for  each  car 
used  and  operated,  to  be  collected  in  an  action  brought  by  the 
attorney-general  and  to  be  paid  to  the  treasurer  of  the  city  of 
New  York,  or  in  a  suit  by  the  district  attorney  of  the  counties 
of  Kings  or  Queens  to  be  paid  into  the  treasury  of  the  city  of 
New  York.  One-third  of  the  cars  operated  by  any  corporation 
in  either  of  the  above  named  counties  shall  be  equipped  with 

Blc 


RAILROAD  LAW. 

the  enclosures  provided  for  in  section  one  of  this  act  on  or 
before  December  first,  nineteen  hundred  and  five,  one-third  thereof 
after  December  first,  nineteen  hundred  and  five,  and  before  Decem- 
ber first,  nineteen  hundred  and  six,  and  the  remaining  one-third 
thereof  after  December  first,  nineteen  hundred  and  six,  and  before 
December  first,  nineteen  hundred  and  seven. 

§  2.  All  acts  or  parts  of  acts  inconsistent  with  this  act  are 
hereby  repealed. 
Added  by  ch.  453  of  1905.     In  effect  May  16,  1905. 

ARTICLE  V. 

OTHER  RAILROADS  IN  CITIES  AND  COUNTIES. 

Section  120.  Application  for  railway;  commissioners. 

121.  Oath  and  bond  of  commissioners. 

122.  First  meet-ing  of  commissioners. 

123.  Determination  of  necessity  of  railroad  and  route. 

124.  Adoption  of  plans  and  terms  upon  which  road  shall  be  built. 

125.  Appraisal  of  damages  and  deposit  of  money  as   security. 

126.  Sftall  prepare  certificate  of  incorporation;  proviso  as  to  forfeiture. 

127.  Organization. 

128.  Commissioners  to  deliver  certificate;  affidavit  of  directors. 

129.  Powers. 

130.  Crossing  of  horse  railroad  track. 

131.  Where  route  coincides  with  another  route. 

132.  Ccmissioners;   to  transfer  plans,  etc. 

133.  Commissioners  to  file  report;  confirmation  tnereof. 

134.  Pay  of  commissioners. 

135.  Quorum;    term   of   office;    removal;   vacancies   in  board   of  com- 

missioners. 

136.  Abandonment   or    change   of    route;    new    commissioners;    their 

power   and  proceedings. 

137.  Increased  deposit;   when  and  how  required. 

138.  Trains  to  come   to   full  stop,  etc. 

139.  Cates. 

140.  Penalty   for  violation  of  this  article. 

141.  Sections   to  Ic  printed  and  posted. 

142.  Extension  of  time. 

§  120.  Application  for  railway;  commissioners. — Upon  the  appli- 
cation of  at  lease  fifty  reputable  householders  and  tax  payers  of 
any  county  or  city,  verified  upon  oath  before  a  justice  of  the 
supreme  court,  that  there  is  need  in  said  county  or  city  of  a 
ste;un  mil  way  in  the  streets,  avenues  and  public  places  thereof 
fur  the  transportation  of  passengers,  mails  or  freight,  the 
boar, I  <>f  supervises  of  such  county  may,  within  thirty  days 
thereafter  by  peso  si  >  i.  approve  of  the  application  and 
authorise  its  piv  to  t'.::1  supreme  court,  and  if  tin- 

railway  is  to  L-e  buiit  v.'lolly  \vi'.\in  the  limits  of  a  city,  upon  the 


RAILROAD   LAW. 

application  of  a  like  number  of  householders  and  tax  payers  of  the 
city  to  the  mayor  thereof,  such  mayor  may,  within  thirty  days  there- 
after, indorse  upon  the  application  his  approval  and  direction  that  it 
may  be  presented  to  the  supreme  court,  and  if  the  railway  is  to  be 
built,  partly  within  the  limits  of  a  city  and  partly  without,  such  appli- 
cation shall  be  approved,  both  by  the  mayor  of  the  city  and  the  board 
of  supervisors  of  the  county,  and  its  presentation  to  the  t--iipre;ne  court 
authorized  by  them,  ami  upon  The  presentation  of  such  application  so 
approved  and  authorized  to  a  special  term  of  the  supreme  court,  held 
in  the  district  where  such  railway  is  to  be  built,  or  some  part  thereof, 
the  court  may  appoint  live  commissioners,  residents  of  the  city  it'  the 
railway  is  to  be  built  wholly  within  the  city,  and  of  the  county,  if  it  is 
to  be  built  wholly  or  partly  outside  of  the  limits  of  a  city,  to  determine 
the  necessity  of  such  railroad,  the  route  thereof,  the  time  within  which 
and  the  conditions  upon  which  it  shall  be  constructed,  the  damages  to 
the  property  owners  along  the  line  thereof  arid  all  the  matters  lawfully 
submitted  to  them,  and  discharge  the  duties  imposed  upon  them  by  law. 

§121.  Oath  and  bond  of  commissioners. —  "Wiihin  ten  days 
after  his  appointment  and  before  entering  upon  the  discharge  of  any 
of  the  duties  of  his  office,  each  commissioner  shall  take  and  subscribe 
the  constitutional  oath  of  office,  which  shall  be  filed  in  the  office  of 
the  clerk  of  the  county  and  shall  execute  a  bond  to  the  people  of  the 
state  in  the  penal  sum  of  twenty-five  thousand  dollars,  with  two  or 
more  sureties,  to  be  approved  by  a  justice  of  the  supreme  court  of  the 
department  in  which  the  railway  is  to  be  built  arid  conditioned  for  the 
faithful  performance  of  the  duties  of  the  office,  which  bond  shall  be 
filed  in  the  office  of  the  clerk  of  the  county. 

§  122.  First  meeting  of  commissioners. —  Within  fifteen  days 
after  their  appointment,  the  commissioners  shall  meet  in  some  con- 
venient place  in  the  county  or  city  and  organize  themselves  as  a  board 
with  appropriate  officers. 

§  123.  Determination  of  necessity  of  railroad  and  route. — The 

commissioners  shall,  within  thirty  days  after  such  organization,  de- 
termine upon  the  necessity  of  such  steam  railroad,  and  if  they  find  it 
to  be  necessary,  they  shall,  within  sixty  days  after  such  organization, 
fix  and  determine  the  route  therefor,  and  shall  have  the  exclusive  power 
to  locate  such  route,  over,  under,  through  or  across  shv.  Mie- 

places  or  lands  in  such  county  or  city,  and  to  provide  for  the  connectioi 
or  junction  with  any  other  railway  or  bridge,  if  the  consent  of  the 
owners  of  one-half  iti  value  of  the  property  bounded  mi  and  the  con- 
sent of  the  local  authorities  having  control  of  that  portion  of  a  street  or 
highway,  upon  which  it  is  proposed  to  construct  or  operate  such  rail- 

5:3 


RAILROAD   LAW. 

wa.y  have  been  first  obtained.  If  the  consent  of  such  property  "owners 
can  not  be  obtained,  the  determination  of  three  commissioners  ap- 
pointed by  the  general  term  of  the  supreme  court  of  the  department 
where  the  railroad  is  to  be  constructed,  made  after  due  hearing  of  all 
parties  interested,  and  confirmed  by  the  court,  that  such  railway  ought 
to  be  constructed  and  operated,  may  be  taken  in  lieu  of  the  consent  of 
such  property  owners.  No  such  railway  shall  be  located  in  or  upon 
such  portion  of  any  street,  avenue,  place  or  lands  in  such  county  as  are 
now  occupied  by  an  elevated  or  underground  railway  or  in  which  such 
a  railway  has  already  been  authorized  by  law  to  be  so  located  and 
constructed,  or  which  are  contained  in  public  parks,  or  occupied  by 
buildings  belonging  to  the  county  or  the  state  or  United  States,  or  in 
or  upon  the  following  streets,  avenues  and  public  places,  viz.:  Broad- 
way, Fifth  avenue,  Fourth  avenue  above  Forty-second  street,  in  the 
city  of  New  York ;  Debevoise  place,  Irving  place,  Lefferts  place,  those 
portions  of  Grand,  Classon  and  Franklin  avenues  and  Dowling  street 
lying  between  the  southerly  line  of  Lexington  avenue  and  the  northerly 
line  of  Atlantic  avenue,  that  portion  of  Classon  avenue  lying  between 
the  northerly  line  of  Lexington  avenue  and  the  southerly  line  of  Park 
avenue,  and  that  portion  of  Washington  avenue  lying  between  Park 
and  Atlantic  avenues  in  the  city  of  Brooklyn;  and  that  portion  of  the 
city  of  Buffalo  lying  between  Michigan  and  Main  streets,  but  such 
railway  may  be  located  and  constructed  across  such  excepted  streets, 
avenues  and  places  at  their  intersection  only  with  other  streets, 
avenues  and  places. 
Amended  1892. 

§  124.  Adoption  of  plans,  and  terms  upon  which  road  shall 
be  built. — The  commissioners  by  such  public  notice,  and  under  such 
conditions,  and  with  such  inducements  as  they  may  prescribe,  shall  in- 
vite a  submission  of  plans  for  the  construction  and  operation  of  su< -h 
railway,  and  shall  meet  at  a  time  and  place  in  such  notice  named,  not 
more  than  ninety  days  after  their  organization,  and  decide  upon  the 
plans  for  the  construction  thereof,  with  the  necessary  supports,  turnouts, 
switches,  sidings,  connections,  landing-places,  stations,  buildings, 
platforms,  stairways,  elevators,  telegraph  arid  signal  devices,  or  other 
requisite  appliances,  upon  the  route  or  location  determined  upon  by 
thorn.  They  shall,  upon  notice  to  the  local  authorities,  and  after  hear- 
ing all  parties  interested,  fix  and  determine  what  compensation,  if  any, 
in  a  gross  sum,  or  in  a  certain  percentage  of  receipts,  shall  annually 
!><•  jiaid  to  the  local  authorities  by  the  corporation  formed  for  the  pur- 
pose of  constriK-tinir,  maintaining  and  operating  surli  raihvay  for 
public  use  in  the  conveyance  of  persons  and  property,  for  the  use  and 
occupation  by  the  corporation  of  the  streets,  avenues  and  highways  in 

54 


RAILROAD  LAW. 

and  upon  which  its  railway  is  to  be  constructed,  and  the  time  when 
such  railway,  or  a  portion  thereof,  shall  be  constructed  and  ready  for 
operation,  and  The  maximum  rates  !<>  In-  paid  for  transportation  and 
conveyance  iheieon,  and  the  hours  during  which  special  cars,  or  trains 
shall  be  run  at  reduced  rates  of  fare ;  and  the  amount  of  tin;  capital 
stork  of  su  h  corporation,  and  the  number  of  shares  into  which  it  shall 
be  divided,  and  the  percentage  thereof  to  be  paid  in  cash  on  MibscriK- 
ing  for  such  shares. 

The  commissioners  may  select  two  or  more  routes,  upon  one  of  which 
such  railway  may  be  constructed  and  operated;  and  the  local  authori- 
ties may  consent  to  the  construction  and  operation  of  such  railway 
upon  one  or  more  of  such  routes,  or  parts  thereof;  and  the  commis- 
sioners shall  have  power  to  change  and  readopt  routes  and  plan-  for 
the  construction  and  operation  of  such  railway,  after  they  have  been 
submitted  to  the  local  authorities,  in  cases  where  such  authorities  may 
recommend  such  changes,  or  may  not  be  willing  to  consent  to  the  con- 
struction or  operation  of  the  railway,  upon  the  routes  and  plans 
adopted,  unless  such  changes  are  made  therein. 

Amended  1892. 

§  125.  Appraisal  of  damages  and  deposit  of  money  as  se- 
curity. —  The  commissioners  shall,  within  one  hundred  and  ten  days 
after  their  organization,  ascertain  and  determine  the  aggregate  pecu- 
niary damage  arising  from  the  diminution  in  the  value  of  the  property 
bounded  on  that  portion  of  such  street  or  streets,  highway  or  highways, 
upon  which  it  is  proposed  to  construct  and  operate  such  railway  to  be 
caused  by  the  construction  and  operation  thereof.  For  that  purpose 
they  shall  view  the  several  parcels  of  real  property  so  bounded,  and 
shall  appraise  separately  the  pecuniary  damages  arising  from  such 
diminution  in  value  of  each  parcel  thereof,  and  for  the  purposes  of 
such  appraisal  they  shall  give  notice  of  the  time  and  place,  when  and 
where  they  will  meet  to  hear  the  owners,  or  persons  interested  in  such 
real  property,  which  notice  shall  be  published  for  at  least  ten  days 
consecutively  in  at  least  two  newspapers  in  the  county  where  such  rail- 
way is  to  be  constructed,  and  shall  take  such  material  testimony  upon 
the  probable  diminution  in  value  of  any  or  all  such  parcels  to  be  so 
caused  as  may  be  offered  by  or  in  behalf  of  any  person  or  party 
interested  therein,  and  the  aggregate  sum  of  the  amounts  so  apprai~<-d 
and  determined  by  them  shall  be  the  aggregate  pecuniary  damage 
required  to  be  ascertained  and  determined  as  above  provided.  Xo 
corporation  which  shall  hereafter  be  organized  under  this  article  shall 
enter  upon  any  street,  highway  or  lane  therein,  until  it  shall  first  have 
deposited  with  some  trust  company,  to  be  designated  by  the  mayor  of 
the  city  within  which  it  is  proposed  to  construct  the  railway  or  any 

55 


RAILROAD  LAW. 

part  thereof,  and  by  the  board  of  supervisors,  when  the  road  does  not 
lie  wholly  within  a  city,  a  sura  of  money  equal  to  the  amount  so  ascer- 
tained and  determined  by  the  commissioners  to  be  the  aggregate 
pecuniary  damage  to  such  property  within  the  city,  or  within  the  county 
outside  of  any  city,  or  shall  have  secured  the  payment  of  such  amount 
by  depositing  with  such  trust  company  negotiable  securities,  equivalent 
at  their  par  and  actual  value  to  such  aggregate  amount,  and  approved 
by  the  mayor  of  the  city  in  which  such  road  is  wholly  or  in  part  located, 
and  by  the  county  treasurer  of  the  county  if  the  road  is  located  wholly 
or  in  part  outside  of  the  limits  of  such  city.  The  court  may  accept  in 
lieu  of  the  deposit  of  money  or  securities  herein  required  the  bond  of 
the  corporation,  with  two  or  more  sureties,  to  be  approved  by  the  court, 
to  the  effect  that  the  corporation  before  constructing  or  operating 
its  railway  in  front  of  any  premises,  shall  pay  to  the  owner  of 
the  real  property  all  the  damages  sustained,  or  which  will  be  sus- 
tained by  him,  as  fixed  and  determined  by  such  commissioners, 
and  the  costs  allowed,  if  any.  8uch  bond  shall  be  in  a  sum 
double  the  amount  of  such  damages,  and  the  sureties  shall  justify 
in  the  aggregate  to  an  amount  equal  to  the  amount  of  such  bond. 
Such  corporation  shall  also,  at  the  same  time,  deposit  with  such  trust 
company  or  with  the  county  treasurer,  as  the  commissioners  may 
direct,  the  sum  of  five  thousand  dollars  in  cash,  for  the  payment  of 
the  expense  of  apportioning  and  distributing  such  fund.  Unless  such 
moneys  or  securities  shall  be  deposited  by  such  corporation  within  one 
year  after  it  shall  have  obtained  the  consent  of  the  local  authorities, 
and  of  the  property  owners,  or  the  confirmation  by  the  general  term 
of  the  supreme  court,  of  the  determination  of  three  commissioners  in 
lieu  thereof,  and  in  the  case  of  a  corporation  heretofore  organized 
within  one  year  after  it  shall  have  obtained  the  confirmation  by  the 
general  term  of  the  supreme  court  of  the  report  of  three  commissioners 
in  lieu  of  the  consent  of  property  owners,  or  within  one  year  after  the 
commissioners  appointed  to  ascertain  and  determine  the  aggregate 
pecuniary  damages  as  provided  in  this  article,  shall  have  made  their 
report,  then  such  corporation  shall  be  deemed  not  to  have  accepted 
the  franchises  granted.  Where  the  commissioners  shall  fix  and 
determine  different  periods  of  time  within  which  different  sections  of 
such  railway  shall  be  constructed  and  ready  for  operation,  they  shall 
ascertain,  determine,  and  report  separately  the  aggregate  pecuniary 
damage  to  property  bounded  upon  that  portion  of  such  street  or  streets 
upon  which  each  of  such  sections  is  located.  Upon  the  deposit  by  the 
corporation  as  above  provided  of  moneys  or  securities  equivalent  to 
th"  nirgregat.e,  pecuniary  damage  to  be  sustained  by  any  one  of  such 
sections,  or  of  any  bond  given  in  lieu  thereof,  it  shall  immediately  be 

56 


RAILROAD  LAW. 

vested  with  the  right  and  privilege  to  construct  its  railway  through 
such  section. 

Amended  1892. 

§  126.  Shall  prepare  certificate  of  incorporation ;  proviso  as 
to  forfeiture. —  The  commissioners  shall  prepare  an  appropriate  cer- 
tificate of  incorporation  for  the  corporation  in  the  last  section  IIKMI- 
tioned  in  which  shall  be  set  forth  and  embodied,  as  component  parts 
thereof,  the  several  conditions,  requirements  and  particulars  by  such 
commissioners  determined  pursuant  to  the  provisions  of  this  article, 
and  which  shall  also  provide  for  the  release  and  forfeiture  to  the  super- 
visors of  the  county,  or  if  the  road  is  to  be  constructed  wholly  or  partly 
within  a  city,  to  such  city,  of  all  rights  and  franchises  acquired  by 
such  corporation  in  case  such  railway  or  railways  shall  not  be  com- 
pleted within  the  time  and  upon  the  conditions  therein  provided  ;  and 
the  commissioners  shall  thereupon  and  within  one  hundred  and  twenty 
days  after  their  organization  cause  a  suitable  book  of  subscription  to 
the  capital  stock  of  such  corporation,  to  be  opened  pursuant  to  due 
public  notice  at  a  banking  office  in  such  county  or  city.  A  failure  by 
any  corporation  heretofore  or  hereafter  organized  under  this  article  to 
complete  its  railway  within  the  time  limited  in  and  by  its  certificate 
of  incorporation  shall  only  work  a  forfeiture  of  the  franchises  of  such 
corporation  with  respect  to  that  portion  of  its  route  which  such  corpo- 
ration shall  have  failed  to  complete,  and  shall  not  affect  the  rights  and 
franchises  of  such  corporation  to  construct  and  operate  such  part  of  its 
railway  which  it  shall  have  completed  within  the  term  prescribed  by 
its  certificate  of  incorporation,  or  as  to  which  the  time  for  completion 
shall  not  have  expired,  notwithstanding  anything  to  the  contrary  in 
its  certificate  of  incorporation. 

§127.  Organization. —  Whenever  the  whole  capital  stock  of  such 
corporation  or  an  amount  of  such  capital  stock  proportioned  to  the 
part,  of  such  railway  directed  by  the  commissioners  to  be  constructed, 
shall  have  been  subscribed  by  not  less  than  fifteen  persons,  and  the 
fixed  percentage  of  such  subscriptions  shall  have  been  paid,  in  cash, 
the  commissioners  shall,  by  written  or  printed  notice  of  ten  days, 
served  personally  or  by  mail,  call  a  meeting  of  such  subscribers  for 
organization,  and  appoint  the  inspectors  of  election  to  serve  thereat. 
At  such  meeting,  or  at  any  subsequent  one  to  which  the  same  may  be 
adjourned,  a  majority  in  number  and  amount  of  such  subscribers  may 
elect  persons,  of  a  number  to  be  theretofore  determined  by  the  com- 
missioners not  less  than  nine,  who  shall  be  directors  for  one  year  of 
the  corporation  formed  for  the  purposes  of  constructing  and  operating 
such  railway. 

57 


RAILROAD   LAW. 

§  128.  Commissioners  to  deliver  certificate ;  affidavit  of  di- 
rectors.—  Within  ten  days  after  The  election  of  such  directors  the 
commissioners  shall  deliver  to  them  a  certificate  in  duplicate,  verified 
by  the  oath  of  three  commissioners,  before  a  justice  of  the  supreme 
court,  setting  forth  the  certificate  of  incorporation  and  the  organiza- 
tion of  the  corporation  for  the  purposes  therein  mentioned,  and  within 
live  days  after  the  reception  by  them  of  such  certificates,  three  of  the 
directors  so  elected  shall  make  affidavit  i:i  duplicate  that  the  full 
amount  of  sTock  has  been  subscribed  in  good  faith  to  construct,  main- 
tain and  operate  the  railway  or  railways  in  such  certificate  of  incorpo- 
ration mentioned,  and  such  directors  shall  file  such  affidavits  and  cer- 
tificate in  the  office  of  the  Secretary  of  State,  and  a  duplicate  of  the 
same  in  the  office  of  the  clerk  of  the  county  wherein  such  railway  shall 
be  located  ;  and  thereupon  the  persons  who  have  so  subscribed  such 
certificate  of  incorporation  and  all  persons  who  shall  become  stock- 
holders in  such  corporation  shall  be  a  corporation  by  the  name  specified 
in  such  certificate,  and  be  subject  to  the  duties,  liabilities  and  restric- 
tions of  such  corporations. 

§129.  Powers. —  Every  such  corporation  shall  have  power,  in 
addition  to  the  powers  conferred  by  the  general  and  stock  corporation 
laws  and  by  subdivisions  two,  five  and  seven  of  section  eight  of  this 
chapter : 

1.  To  take  and  convey   persons  and  property  on  their  railroad  by 
the  power  or  force  of  steam  or  by  any  motor  other  than  animal  power, 
and  to  receive  compensation  therefor. 

2.  To  enter  upon  and  underneath  the  several  streets,  avenues  and 
public  places  and  lands  designated  by  the  commissioners,  and  enter 
into  and  upon  the  soil  of  the  same,  to  construct,  maintain,  operate  and 
use  in  accordance  with-  the  plan  adopted  by  the  commissioners,  a  rail- 
way upon  the  route  or  routes  and  to  the  points  decided   upon  and  to 
secure  the  necessary  foundations  and  erect  the  columns,  piers  and 
other  structures  which  may  be  required  to  secure  safety  and  stability 
in  the  construction  and  maintenance  of  the  railways  constructed  upon 
such  plan  and  for  operating  the  same ;  and  to  make  such  excavations 
and  openings  along  the  route  through  which  such  railway  shall  be  con- 
structed as  shall  be  necessary  from  time  to  time.     In  all  cases  the  sur- 
face of  the  streets  around  such  foundations,  piers  and   columns  shall 
be  restored  to  the   condition  in  which  they  were  before  such  excava- 
tions were  made,  as  near  as   may   bi»,  and  any   interference  with   or 
change  in  the  water  mains,  or  in  the  sewers  or  lamp  posts,  except  such 
changes  as  may  be  made  with  the  concurrence  of  the  proper  depart- 
ment or  authority  shall    bo  avoided;  and  the  use  of  the  streets,  ave- 
nues, places  and  lands  designated  by  the  commissioners  and  the  right. 

58 


RAILROAD  LA.W. 

of  way  through  the  same  for  the  purpose  of  a  railway,  as  herein 
authorized,  shall  be  considered  and  is  hereby  declared  to  be  a  public 
use,  consistent  with  the  uses  for  which  the  roads,  streets,  avenues  and 
public  places  are  publicly  held.  No  such  corporation  shall  have  the 
right  to  acquire  the  use  or  occupancy  of  public  parks  or  squares  in 
any  such  city  or  county,  or  the  use  or  occupancy  of  any  of  the  streets 
or  avenues,  except  such  as  may  have  been  designated  for  the  route  or 
routes  of  such  railway,  and  except  such  temporary  privileges  as  the 
proper  authorities  may  grant  to  such  corporations  to  facilitate  such 
construction,  and  no  such  railway  shall  be  constructed  across  the  track 
of  any  steam  railway  now  in  actual  operation  at  the  grade  thereof,  nor 
shall  any  piers  or  supports  for  any  elevated  railway  be  erected  upon  a 
railway  track  now  actually  in  use  in  any  street  or  avenue ;  and  no 
such  corporation  shall  construct  a  street  surface  railroad  to  run  in  whole 
or  in  part  upon  the  surface  of  any  street  or  highway  under  the  pro- 
visions of  this  article. 

§  130.  Crossing  of  horse  railroad  track. —  Whenever  the  route 
selected  by  the  commissioners  for  the  construction  of  such  railway 
shall  intersect,  cross  or  coincide  with  any  horse  railway  track  occupy- 
ing the  surface  of  the  street  or  avenues,  such  railway  corporation  is 
hereby  authorized  to  remove,  for  the  purpose  of  constructing  its  road, 
the  tracks  of  such  horse  railway ;  but  the  same  shall  be  done  in  such 
manner  as  to  interfere  as  little  as  possible  with  their  practical  opera- 
tion or  working,  and  upon  the  construction  of  such  railway,  where  such 
removals  or  changes  have  been  made,  the  same  shall  be  restored  as 
near  as  may  be  to  the  condition  in  which  they  were  previous  to  the 
construction  of  such  railroad.  All  such  removals  and  restorations/shall 
be  made  at  the  proper  cost  arid  charges  of  such  corporation,  but  no 
authority  is  herein  given  to  any  such  corporation  to  use  the  tracks  of 
any  horse  railway. 

§  131.  Where  route  coincides  -with  another  route. — Whenever 
the  route  or  routes  determined  upon  by  the  commissioners  coincide 
with  the  route  of  routes  covered  by  the  charter  of  an  existing  corpora- 
tion, formed  for  the  purpose  of  constructing  and  operating  such  a 
railway,  and  it  has  not  forfeited  its  charter  or  failed  to  comply  with 
the  provisions  thereof,  requiring  the  construction  of  a  road  or  roads 
within  the  time  therein  prescribed,  such  corporation  shall  have  the 
like  power  to  construct  and  operate  such  railway  upon  the  fulfillment 
of  the  like  requirements  and  conditions  imposed  by  the  commissioners 
as  a  corporation  specially  formed  under  this  article,  and  the  commis- 
sioners may  fix  and  determine  the  route  or  routes  by  which  any 
elevated  steam  railway  now  in  actual  operation  may  connect  with 

59 


RAILROAD   LAW. 

other  steam  railways  or  the  depots  thereof,  or  with  steam  ferries,  upon 
making  compensation  therefor,  and  in  case  such  corporations  can  not 
agree  vdth  the  owners  of  such  steam  railways,  depots  or  ferries  upon 
the  amount  of  such  compensation,  and  such  owners  may  be  entitled  to 
compensation  therefor,  the  amount  of  such  compensation  shall  be 
Ascertained  and  paid  in  the  manner  prescribed  in  the  condemnation 
law,  and  upon  fulfillment  by  such  elevated  railway  corporation,  so  far 
as  it  relates  to  such  connection,  of  the  requirements  and  conditions 
imposed  by  this  article,  it  shall  possess  all  the  powers  conferred  by 
section  129  of  this  article,  and  when  any  connecting  route  or  routes 
shall  be  so  designated,  such  elevated  railway  corporation  may  con- 
struct such  connection  with  all  the  rights  and  with  like  effect  sis 
though  the  same  had  been  part  of  the  original  route  of  such  railway. 
Amended  1892.  Typographical  error  corrected. 

§  132.  Commissioners  to  transfer  plans,  etc. —  Within  one  month 
after  such  corporation  shall  have  been  formed  and  organized  in  the 
manner  hereinbefore  provided,  the  commissioners  shall  transfer  and 
deliver  to  the  corporation  all  plans,  specifications,  drawings,  maps, 
books  and  papers  in  their  possession,  and  they  shall,  within  the  like 
period  of  one  month  after  the  organization  of  such  corporation,  cause 
to  be  paid  to  the  treasurer  thereof  all  money  collected  under  the  pro- 
visions of  this  article,  after  deducting  therefrom  the  necessary  expenses 
incurred  by  the  commissioners  and  the  amounts  due  to  them  for  their 
salaries. 

§  133.  Commissioners  to  file  report ;  confirmation  thereof.— 

The  commissioners  shall  within  one  hundred  and  forty  days  after  their 
appointment,  make  a  report  to  a  special  term  of  the  supreme  court  of 
the  department  in  which  such  railway  may  be  located,  of  the  amount 
of  the  pecuniary  damage  arising  from  the  diminution  of  value  of  each 
parcel  of  property  bounded  on  that  portion  of  the  street  or  streets, 
highway  or  highways,  upon  which  it  is  proposed  to  construct  such 
railway  or  railways,  which  will  be  caused  by  the  construction,  main- 
tenance and  operation  thereof.  The  name  and  place  of  residence  of 
the  owner  or  owners  of  each  parcel  shall  be  stated  if  the  same  are 
known,  or  can  be  ascertained,  and  if  not  known  the  name  of  tho  per- 
son or  persons  appearing  by  the  certificate  of  the  clerk  or  register  of 
the  county,  to  have  the  title  thereto  from  the  records  in  his  office,  and 
a  specific  description  of  each  parcel  of  property  with  reasonable  cer- 
tainty. The  testimony,  if  any,  taken  by  the  commissioners  as  to  the 
amount  of  such  damage,  shall  accompany  their  report.  Within  thirty 
days  after  filing  and  recording  its  certificate  of  incorporation,  the  cor- 
poration authorized  to  construct  and  operate  such  railway  or  railways 

60 


RAILROAD   LAW. 

shall  move  to  confirm  such  report  by  giving  notice  of  such  motio?\  to 
the  property  owners  in  the  manner  in  which  notice  of  the-  time  and 
place  of  hearing  before  the  commissioners  is  required  by  section  125  to 
be  given,  and  if  the  corporation  fails  to  so  nr.jve,  any  property  owner 
may  make  the  motion ;  and  thereafter  the  proceedings  shall  be  <•<> ..- 
din-ted  in  the  manner  prescribed  in  the  condemnation  law.  Bei'mc 
omsfTucting  and  operating  its  railway  in  front  of  any  real  property 
bounded  upon  any  street,  avenue  or  public  place  wherein  the  corpora- 
tion is  authorized  by  the  certificate  and  report  of  the  commissioners  lo 
construct  and  operate  its  road,  such  corporation  .shall  pay  to  the  owner 
of  the  real  property  the  damages  sustained  or  which  will  be  sustained 
by  him  in  consequence  thereof,  as  finally  fixed  and  ascertained,  and 
the  costs  allowed  him,  if  any,  and  the  court  may  direct  that  such 
damages  be  paid  out  of  the  moneys  deposited  pursuant  to  the  provis- 
ions of  section  125,  or  in  case  negotiable  securities  shall  have  been 
deposited  in  lieu  of  money,  that  so  much  of  such  securities  shall  be 
sold  as  may  be  necessary  to  raise  the  amount  required  to  be  paid  to 
such  owner  for  damages  and  costs  if  any.  If  a  bond  shall  have  been 
executed  in  lieu  of  such  deposit,  the  court  may  order  the  sureties  in 
such  bond  to  pay  the  damages  so  fixed  and  ascertained,  and  in  default 
thereof,  may  cause  them  to  be  proceeded  against  and  punished  as  for 
a  contempt  of  court. 

§  134.  Pay  of  commissioners. —  Each  of  the  commissioners  shall 
be  paid  for  his  services  at  the  rate  of  ten  dollars  per  day  for  each  day 
of  actual  service  as  such  commissioner,  and  all  expenses  necessarily 
incurred  by  him  in  the  discharge  of  his  duties,  to  be  paid  by  such  cor- 
poration, but  if  a  sufficient  amount  of  capital  stock  shall. not  be  sub- 
scribed within  one  year  after  the  appointment  of  such  commissioners 
to  authorize  the  formation  of  such  corporation,  the  commissioners  shall 
receive  no  salary,  and  shall  cause  to  be  returned  to  the  subscribers 
for  such  stock  the  amounts  paid  in  by  them,  after  deducting  there- 
from the  necessary  expenses  incurred  by  the  commissioners,  but  the 
time,  if  any,  unavoidably  consumed  by  the  pendency  of  legal  proceed- 
ings shall  not  be  deemed  a  part  of  any  period  of  time  limited  by  this 
article. 

£  1H5.  Quorum;  term  of  office;  removal;  vacancies  in  board 
of  commissioners. —  A  majority  of  the  members  of  any  board  of 
commissioners  appointed  under  this  article  shall  be  a  quorum  for  the 
transaction  of  any  business  or  the  performance  of  any  duty  or  function, 
or  the  exercise  of  any  power,  conferred  or  enjoined  upon  them.  Any 
commissioner  may  be  removed  for  cause  at  any  time  by  the  power 
appointing  him,  but  no  commissioner  shall  be  removed  without  due 

61 


RAILROAD   LAW. 

notice  and  an  opportunity  to  be  heard  in  defense ;  and  no  commis- 
sioner thus'  removed  is,  or  shall  be  eligible  to  be  again  appointed  to 
the  office  of  commissioner.  In  case  of  the  death,  resignation  or 
removal  from  office  of  any  commissioner  the  vacancy  shall  be  filled  by 
the  power  appointing  him,  within  thirty  days  after  such  removal,  or 
within  thirty  days  after  notice  in  writing  to  such  appointing  power 
given  by  some  member  of  the  board,  or  by  the  corporation  hereinafter 
mentioned,  of  such  death  or  resignation,  and  a  certificate  of  every 
such  appointment  shall  be  filed  as  hereinbefore  required.  Except  as 
otherwise  provided  by  law,  the  terms  of  office  of  the  commissioners 
shall  determine  and  expire  with  the  performance  of  their  functions  as 
.herein  above  prescribed. 

§  186.  Abandonment  or  change  of  route  ;  new  commission- 
ers ;  their  powers  and  proceedings. —  Any  corporation  heretofore 
organized  or  hereafter  to  be  organized  under  this  article,  its  successor 
or  assigns,  which  shall  have  constructed  or  put  in  operation  a  railway 
upon  a  part  and  not  upon  the  whole  of  the  route  fixed,  determined 
and  located  for  such  railway  by  a  board  of  commissioners,  may  at  any 
time  apply  for  authority  to  abandon  any  portion  of  the  route  upon 
which  the  railway  shall  not  have  been  theretofore  constructed  or  shall 
not  then  be  in  operation,  with  or  without  a  change  and  relocation  of 
such  portion,  and  with  or  without  extension  of  the  portion  not  aban- 
doned, or  of  any  part  thereof.  Such  application  shall  be  made  by 
petition  in  writing,  addressed  by  such  corporation  to  the  board  of 
supervisors  of  the  county  in  which  such  portion  of  the  route  so  desired 
to  be  changed  or  abandoned  shall  be  situated,  which  is  not  within  the 
limits  of  a  city,  or  if  such  route,  or  any  part  thereof,  shall  be'  within 
the  limits  of  a  city,  to  the  mayor  of  the  city,  for  the  route  or  portion 
thereof  within  such  city.  Five  commissioners  may  be  appointed  pur- 
suant to  such  an  application  as  hereinafter  provided,  who  shall  be  resi- 
dents of  the  county  or  city  and  who  shall  have  full  power  as  herein 
provided.  When  such  application  is  made  by  a  corporation  heretofore 
organized  such  commissioners  may  be  appointed  within  thirty  days 
after  presentation  of  the  same  by  such  board  of  supervisors,  or,  as  the 
case  may  be,  by  such  mayor.  When  such  application  is  made  by  a 
corporation  hereafter  to  be  organized  under  this  article,  such  board  of 
supervisors,  or,  as  the  case  may  be,  such  mayor,  may  within  t.hirty 
days  after  presentation  of  such  application,  indorse  thereon  their  or 
his  approval  and  direction  that  it  may  be  presented  to  the  supremo 
court  in  the  manner  provided  in  section  120  of  this  article,  and  such 
court  may  thereupon  appoint  such  commissioners.  Within  ten  days 
after  his  appointment  each  commissioner  so  appointed  shall  take,  sub- 
scribe and  file  the  oath  and  give  and  file  the  bond  prescribed  by  sec- 

62 


RAILROAD  LAW. 

tion  121  of  this  article  ;  and  if  any  one  so  appointed  shall  not  comply 
with  this  requirement,  he  shall  be  deemed  to  have  declined  to  accept  such 
appointment,  and  to  have  made  a  vacancy  which  the  appointing  power 
shall  fill  by  another  appointment  as  herein  provided.  Within  fifteen 
days  after  such  appointments  shall  have  been  so  made,  the  commis- 
sioners shall  meet  at  some  convenient  place  in  such  county  and  complete 
their  organization  as  a  board  with  appropriate  officers.  Such  board  shall 
have  all  the  authority  conferred  by  law  upon  commissioners  appointed, 
or  authorized  to  be  appointed  under  this  article.  Before  proceeding 
to  hear  the  application  of  the  corporation,  the  board  shall  give  such 
public  notice  as  it  may  deem  most  proper  and  effective  of  the  time 
and  place  of  the  hearing.  Within  thirty  days  after  completing  their 
organization  such  board  shall  hear  the  application  of  the  corporation, 
and  all  parties  who  may  be  interested  therein,  and  within  sixty  days 
after  their  organization  they  shall  determine  whether  any  part  of  such 
route  should  be  authorized  to  be  abandoned,  or  should  be  changed 
and  relocated  with  or  without  extension  or  extensions.  If  the  board 
shall  determine  that  no  abandonment  of  any  part  of  the  route  should 
be  allowed,  and  that  no  change  and  relocation  of  any  part  thereof 
should  be  effected,  and  that  no  extension  should  be  made,  the  board 
shall  dismiss  the  application.  If  The  board  shall  determine  that  an 
abandonment  of  any  portion  of  the  route  should  be  allowed,  or  that 
any  change  in  or  extension  thereof  should  be  made,  the  board  shall 
proceed  to  authorize  and  require  the  same  upon  such  conditions  as  to  the 
board  shall  seem  proper,  and  with  or  without  extension  of  the  remainder 
of  the  route  or  of  any  part  thereof,  by  fixing,  determining  and  locat- 
ing the  route  or  routes  of  the  extension  or  extensions,  if  any, 
and  by  directing  the  abandonment  of  the  part  of  the  route  theretofore 
located,  but  by  the  board  allowed  to  be  abandoned,  if  any,  and  by 
fixing,  determining  and  relocating  the  part  of  the  route  theretofore 
located,  but  by  the  board  changed,  if  any ;  and  the  board  shall  cause 
to  be  made  in  duplicate  a  survey  and  map  of  the  route  as  so  changed 
and  fixed,  determined  and  located.  Neither  such  corporation  nor  any 
assign  or  successor  thereof  shall  thereafter  have  any  authority,  by 
reason  of  anything  done  under  this  article  to  operate  or  construct  any 
railway  upon  any  portion  of  the  route  by  the  board  so  required  to  be 
abandoned.  The  board  shall  also  fix  and  determine  the  time  within 
which  the  railway  by  it  authorized  and  required  upon  any  portion  of 
the  route  so  changed,  shall  be  reconstructed  and  ready  for  operation. 
If  the  railway  or  any  portion  of  the  route  not  by  the  board  changed  or 
allowed  to  be  abandoned,  shall  not  have  been  theretofore  constructed 
and  made  ready  for  operation,  the  board  may  extend,  and  fix  and 
determine  anew  the  time  within  which  such  railway  shall  be  com- 
pleted, but  such  extension  of  time  shall  not  be  for  a  longer  period  than 

63 


RAILROAD  LAW. 

that  originally  allowed  by  law  for  the  completion  thereof.  If  the 
board  shall  have  determined  that  any  portion  of  the  route  theretofore 
located  should  be  allowed  to  be  abandoned,  with  or  without  a  change 
or  relocation  thereof  or  any  part  thereof,  and  with  or  without  exten- 
sion, or  if  the  board  shall  have  extended  the  time  within  which  such 
railway  shall  be  completed,  the  board  shall  make  a  report  in  writing 
iu  accordance  with  the  determination  so  made,  describing  the  portion 
of  the  route,  if  any  there  be,  as  so  fixed,  determined  and  located 
anew,  and  the  part,  if  any  there  be,  of  the  route  allowed  to  be  aban- 
doned, and  stating  the  period  of  time,  if  any,  by  the  board  fixed  and 
determined  within  which  such  corporation  shall  construct  and  com- 
plete the  railway  theretofore  authorized  or  by  it  authorized  to  be  con- 
structed, and  prescribing  that  a  failure  by  the  corporation,  its 
successors  or  assigns,  to  complete  it  within  the  time,  if  any  so  limited, 
shall  work  a  forfeiture  to  the  supervisors  of  the  county  if  no  part  of  the 
road  is  within  a  city,  or  in  any  city,  to  such  city,  of  the  rights  and 
franchises  of  such  corporation  with  respect  to  that  portion  of  the  route 
so  fixed,  determined  and  located  anew,  and  with  respect  to  the  then 
authorized  extension  or  extensions,  if  any  there  be  of  said  route, 
'upon  which  a  railway  shall  not  be  constructed  within  the  time 
so  limited;  but  the  time,  if  any,  unavoidably  consumed  by  the 
pendency  of  legal  proceedings,  shall  not  be  deemed  a  part  of 
any  period  of  time  limited  in  this  article,  and  any  recital  of  any 
forfeiture  of  any  of  the  rights  or  franchises  prescribed  by  any  commis- 
sioners heretofore  appointed,  to  be  to  the  mayor,  aldermen  and  com- 
monalty of  the  city  of  New  York,  shall  be  as  effectual  for  any  and  all 
purposes  as  if  such  forfeiture  had  been  in  terms  recited  to  be^to  the 
board  of  supervisors  of  the  county  of  New  York.  Such  report  shall 
be  signed  in  duplicate  by  at  least  a  majority  of  the  then  members  of 
the  board,  and  there  shall  be  thereto  annexed  the  survey  and  map  as 
hereinabove  directed,  shoving  the  line  and  location  of  each  and  all  the 
routes,  with  or  without  the  extension  or  extensions,  as  fixed,  deter- 
mined and  located,  and  showing  also  the  parts  or  part,  if  any  there 
shall  be,  of  the  route  or  routes  as  theretofore  fixed,  determined  and 
located,  but  by  the  board  allowed  to  be  abandoned.  Within  ten  days 
after  so  signing  such  report  the  board  shall  cause  the  same  to  be  filed 
in  the  office  of  the  Secretary  of  State,  and  the  duplicate  thereof  in  the 
office  of  the  clerk  of  the  county  wherein  such  railway  shall  be  located  ; 
and  thereupon  the  corporation  making  such  application,  its  successors 
or  assigns,  is  and  shall  be  authorized  to  construct,  maintain  and 
operate  a  steam  railway  for  the  transportation  of  passengers,  mail  and 
freight,  upon  tho  route  or  routes  so  fixed,  determined  and  located,  and 
in  said  report  described,  but  the  construction  or  operation  of  a  railway 
upon  any  new  location  or  selection  of  route  is  not  and  shall  not  be  thus 

64 


RAILROAD  LAW. 

authorized  except  upon  the  condition  that  the  consent  of  the  owners  of 
one-half  in  value  of  the  property  bounded  on,  and  the  consent  also  of 
the  local  authorities  having  control  of  that  portion  of  a  street  or  high- 
way upon  which  it  is  proposed  to  construct  or  operate  such  railway  be 
first  obtained,  or  in  case  the  consent  of  such  property  owners  can  not 
be  obtained,  that  the  determination  of  three  commissioners,  to  be  upon 
application  appointed  by  the  general  term  of  the  supreme  court,  in  the 
district  in  which  such  railroad  is  proposed  to  be  constructed,  be  given 
after  a  hearing  of  all  parties  interested  that  such  railway  ought  to  be 
constructed  or  operated,  which  determination,  confirmed  by  the  court, 
may  be  taken  in  lieu  of  the  consent  of  the  property  owners.  Such 
corporation  is  and  the  successors  and  assign  thereof  shall  be  authorized 
to  maintain  and  operate  all  the  railroads  and  the  appurtenance 
thereof  by  it  or  them  theretofore  constructed  upon  any  portion  of  a  route 
or  routes  which  shall  have  been  located"  by  commissioners  under  this 
article,  and  to  complete  within  the  time  in  and  by  such  report  so  ex- 
tended, fixed  and  determined  anew,  and  thereafter  to  maintain  and 
operate,  the  railway  and  the  appurtenances,  upon  so  much  of  the  route 
or  routes  theretofore  fixed,  determined  and  located  as  shall  not  have 
been  so  authorized  and  required  to  be  abandoned,  and  with  the  same 
rights  and  effect,  in  all  respects,  as  if  such  extended  period  of  time  had 
been  originally  fixed  and  determined,  and  in  the  original  certificate  of  in- 
corporation of  such  corporation  recited,  for  completing  such  railway  and 
putting  it  in  operation.  The  other  terms  and  conditions  in  and  by  such 
certificate  mentioned  and  prescribed,  except  as  the  same  are  hereinbefore 
modified  or  may  be  modified  by  the  board  as  hereinabove  authorized,  shall 
apply  to  the  railway  herein  authorized  to  be  constructed  and  operated 
upon  the  route  or  routes  as  so  changed,  fixed,  determined  and  located, 
with  the  same  force  and  effect  as  if  such  route  or  routes,  as  finally  so 
changed  and  located,  had  been  in  and  by  such  articles  or  certificates 
themselves  prescribed.  If  a  new  location  or  extension  of  routes  shall 
be  fixed  and  determined  by  commissioners  who  shall  have  been  ap- 
pointed by  the  court  pursuant  to  this  section,  they  shall  also  ascertain 
and  determine  the  aggregate  pecuniary  damages  arising  from  the 
diminution  of  value  of  the  property  bounded  on  that  portion  of  the 
street  or  highway  upon  the  line  of  such  new  location  or  extension  and 
of  each  parcel  of  real  property  so  bounded,  and  their  proceedings 
thereupon  shall  be  conducted  in  the  same  manner  and  upon  the  like 
notice  as  the  proceedings  for  that  purpose  before  the  commissioners 
specified  in  section  125,  and  shall  make  to  the  supreme  court  the  re- 
port required  by  section  133,  and  thereupon  the  same  proceeding  shall 
be  had  as  are  provided  for  in  such  last  named  section.  Each  com- 
missioner shall  be  paid  for  his  services  at  the  rate  of  ten  dollars  per 
day  for  each  day  of  actual  services  as  such  commissioner,  and  all 

b'5 


RAILROAD  LAW. 

reasonable  expenses  incurred  by  him  in  or  about  any  of  the  matters  re- 
ferred to  such  board,  to  be  paid  by  the  corporation  making  the  appli- 
cation so  heard  and  determined.  No  corporation  shall  be  authorized 
under  this  section  to  extend,  abandon  or  change  the  location  of  its 
route,  or  any  part  thereof,  where  the  greater  portion  of  the  route  or 
routes  is  or  shall  be  in  that  portion  of  the  city  of  New  York  south  or 
west  of  Harlem  river,  or  of  any  route  or  part  thereof  in  the  city  of 
Brooklyn  or  county  of  Kings,  or  to  construct,  extend,  abandon  or 
change  the  location  of  any  railway  or  route  for  a  railway  over,  under, 
through  or  across  any  street,  avenues,  place  or  lands  south  of  One 
Hundred  and  Twenty-eighth  street  or  west  of  Third  avenue  in  that 
portion  of  the  city  of  New  York  south  or  west  of  Harlem  river,  or 
where  a  railway  might  not  by  law  be  constructed,  or  was  not  by  law 
authorized  to  be  by  a  board  of  commissioners  located  on  the  5th  day 
of  June,  1888. 

§  137.  Increased  deposit,  when  and  how  required. —  In  case 
any  of  the  securities  deposited  in  lieu  of  money  as  provided  in  section 
one  hundred  and  twenty-five,  shall  in  the  opinion  of  the  county  treas- 
urer or  trust  company  with  whom  they  may  be  deposited,  fall  below 
their  actual  value  at  the  time  of  deposit,  the  county  treasurer  or  trust 
company  shall  call  upon  such  railway  corporation  to  substitute  there- 
for other  securities  equivalent  at  their  par  or  market  value  to  the 
amount  in  lieu  of  which  the  securities  for  which  they  are  to  be  substi- 
tuted were  deposited,  and  in  case  such  other  securities  shall  not  be 
furnished,  the  county  treasurer  or  trust  company  shall  call  upon  such 
corporation  to  furnish  as  a  substitute,  and  it  shall  so  furnish  an  amount 
of  money  equal  to  the  amount  in  lieu  of  which  the  securities  first  above 
referred  to  were  deposited. 

§138.  Trains  to  come  to  full  stop,  etc. —  All  trains  upon  ele- 
vated railroads  shall  come  to  a  full  stop  before  any  passenger  shall  be 
permitted  to  leave  such  trains ;  and  no  train  on  such  railroad  shall  be 
permitted  to  start  until  every  passenger  desiring  to  depart  therefrom 
shall  have  left  the  train,  provided  such  passenger  has  manifested  his  01 
her  intention  to  so  depart  by  moving  toward  or  upon  the  platform  of  any 
car;  nor  until  every  passenger  upon  the  platform  or  station  at  which  such 
train  has  stopped,  and  desiring  to  board  or  enter  such  cars,  shall  have 
.actually  boarded  or  entered  the  same,  but  no  person  shall  be  permitted 
to  enter  or  board  any  train  after  due  notice  from  an  authorized  em- 
ployee of  such  corporation  that  such  train  is  full  and  that  no  more 
passengers  can  be  then  received. 

§  139.  Gates  or  vestibule  doors. — Every  car  used  for  passengers 
upon  elevated  railroads  shall  have  gates  at  the  outer  edges  of  its 
platforms,  so  constructed  that  they  shall,  when  opened,  be  caught 

66 


RAILROAD  LAW. 

and  held  open  by  such  catch  or  spring  as  will  prevent  their  swing- 
ing and  obstructing  passengers  in  their  egress  from  or  ingress  to 
such  cars,  or  vestibule  doors  so  constructed  as  to  slide  into  the  body 
cf  the  car;  mid  every  such  gate  or  door  shall  be  kept  closed  while 
the  car  is  in  motion;  and  when  the  car  has  stopped  and  a  gate  or 
doer  has  been  opened,  the  car  shall  not  start  until  such  gate  or 
door  is  again  firmly  closed. 
Amended  by  ch.  273  of  1903.  In  effect  April  24,  1903. 

§  140.  Penalty  for  violation  of  this  article. — Any  elevated  rail- 
road corporation  that  shall  fail  or  neglect  to  comply  with  or  enforce  the 
provisions  of  this  article,  shall  upon  the  petition  of  any  citizen  to  any 
court  of  record,  and  upon  due  notice  to  such  corporation,  and  proof  of 
such  failure  or  neglect,  pay  to  the  clerk  of  the  court  wherein  such  peti- 
tion was  made,  a  sum  not  less  than  two  hundred  and  fifty  nor  more 
than  one  thousand  dollars,  as  such  court  may  direct  by  its  order.  The 
sum  so  ordered  to  be  paid  shall  be  paid  by  such  clerk  of  the  court  to- 
the  county  treasurer,  and  shall  be  distributed  by  such  treasurer 
equally  among  the  public  hospitals  of  the  county  in  which  the  proceed- 
ing is  had,  at  such  time,  as  the  board  of  supervisors  or  board  of 
aldermen  in  any  such  county  shall  direct.  Nothing  in  this  section 
shall  relieve  elevated  railroad  corporations  from  any  liability  under 
which  they  may  now  be  held  by  existing  laws  for  damages  to  persons 
or  property. 

§  141.  Sections  to  be  printed  and  posted. —  The  officers  and 
board  of  directors  of  such  railroad  corporations  shall  cause  copies  of 
sections  one  hundred  and  thirty-eight,  one  hundred  and  thirty-nine 
and  one  hundred  and  forty  to  be  printed  conspiciously  and  posted  in 
the  depots  or  stations  arid  in  each  car  belonging  to  them. 

§  142.  Extension  of  time. — The  time  within  which  any  act  is  re- 
quired to  be  done  under  this  article  may  be  extended  by  the  supreme 
court  for  good  cause  shown,  for  one  year,  and  but  one  extension  will  be 
granted. 

Any  company  that  has  heretofore  constructed  or  is  now  operating  an 
elevated  railroad  shall  be  deemed  to  have  been  duly  incorporated 
withstanding  any  failure  on  the  part  of  commissioners  to  insert  in  its 
articles  of  association  provisions  complying  with  statutory  requirements 
relative  to  such  articles. 

New. 

ARTICLE  VI. 

THE    BOARD    OP    RAILROAD    COMMISSIONERS. 

SECTION  150.  Appointment  and  term  of  office  of  railroad  commissioners. 
Iril.  Suspension  from  offine. 
1  ?12.   Serrftary  and  marshal  of  hmrd. 
1'3.   Additional  officers ;  their  dii'ics. 

67 


RAILROAD   LAW. 

SECTION  154.  Oath  of  office  ;  eligibility  of  officei-s  of  board. 

155.  Principal  officer  arid  meetings  of  board. 

156.  Quorum  of  board. 

157.  General  powers  and  duties  of  board. 

158.  Reports  of  railroad  corporations. 

159.  Investigation  of  accidents. 

160.  Recommendations  of  board  where  law  has  been  violated. 

161.  Recommendations  of   board  when   repairs  or   other  changes  are 

necessary. 

162.  Legal  effect  of  recommendation  and  action  of  the  board. 

163.  Corporation  must  furnish  necessary  information. 

164.  Attendance  of  witnesses  and  their  fees. 

165.  Fees  to  be  charged  and  collected  by  the  board. 

166.  Annual  report  of  board. 

167.  Certified  copies  of  papers  filed  to  be  evidence. 

168.  Acts  prohibited. 

169.  Salaries  and  expenses  of  members  and  officers  of  the  board. 

170.  Total  annual  expense  to  be  borne  by  railroads. 

171.  Application  of  this  article. 

§  150.  Appointment  and  term  of  office  of  railroad  commis- 
sioners.—  There  shall  continue  to  be  a  board  of  railroad  commissioners, 
consisting  of  five  competent  persons,  one  of  whom  shall  be  experi- 
enced in  railroad  business,  appointed  by  the  Governor,  by  and 
with  the  advice  and  consent  of  the  senate,  each  of  whom  shall 
hold  office  for  the  term  of  five  years,  and  until  his  successor  shall 
have  been  appointed  and  shall  have  qualified.  A  commissioner 
shall  in  like  manner  be  appointed  upon  the  expiration  of  the 
term  of  any  commissioner;  and  when  any  vacancy  shall  occur  in 
the  office  of  any  commissioner,  a  commissioner  shall  in  like 
manner  be  appointed  for  the  residue  of  the  term.  If  the  senate 
shall  not  be  in  session  when  the  vacancy  occurs,  the  Governor  shall 
appoint  a  commissioner  to  fill  the  vacancy,  subject  to  the  approval 
of  the  senate  when  convened. 

Amended  by  ch.  728  of  1905.     In  effect  June  3,  1905. 

§  151.  Suspension  from  office. —  Any  commissioner  may  be  sus- 
pended from  office  by  the  Governor  upon  written  charges  preferred. 
The  Governor  shall  report  such  suspension  and  the  reasons  therefor  to 
the  senate  at  the  beginning  of  the  next  ensuing  session,  and  L"  a 
majority  of  the  senate  shall  approve  the  action  of  the  Governor,  such 
commissioner  shall  be  removed  from  office  and  his  office  become  vacant. 

§  152.  Secretary  and  marshal  of  board.— The  board  shall  have 
a  secretary  and  a  marshal,  who  shall  be  appointed  by  it  and  serve 
during  its  pleasure.  The  secretary  shall  keep  a  full  and  faithful  record 
of  the  proceedings  of  the  board,  and  be  the  custodian  of  its  records, 
and  file  and  preserve  at  its  general  office  all  books,  maps,  documents 
and  papers  intrusted  to  his  care,  and  be  responsible  to  the  board  for 
the  same.  Under  the  direction  of  the  board  he  shall  be  its  chief 
executive  officer,  shall  have  general  charge  of  its  office,  superintend  its 
clerical  business,  conduct  its  correspondence,  be  the  medium  of  its 
decisions,  recommendations,  orders  and  bequests,  prepare  for  service 

68 


RAILROAD  LA\V. 

such  papers  and  notices  as  may  be  required  of  him  by  the  commission- 
ers, and  perform  such  other  duties  as  the  board  may  prescribe,  and  he 
shall  have  power  to  administer  oaths  in  all  cases  pertaining  to  the 
duties  of  his  office.  He  shall  have  the  power  to  designate  froni  time  to 
time  one  of  the  clerks  appointed  by  the  board  to  act  as  assistant  secre- 
tary during  his  absence  from  the  county  of  Albany,  and  the  clerk  so 
designated  for  the  time  designated  shall  within  the  county  of  Albany 
only,  possess  the  powers  conferred  by  this  section  upon  the  secretary 
of  the  board. 

§  153.  Additional  officers ;  their  duties. — The  board  may  also 
appoint,  to  serve  during  its  pleasure,  the  following  officers  or  aiiy  of 
them :  An  accountant,  who  shall  be  thoroughly  skilled  iu  railroad  ac- 
counting, and  who  shall,  under  the  direction  of  the  board,  make  exami- 
nations of  the  books  and  accounts  of  railroad  and  other  corporations, 
and  supervise  the  quarterly  and  annual  reports  made  by  the  railroad 
corporations  to  the  board,  and  collect  and  compile  railroad  statistics, 
and  perform  such  other  duties  as  the  board  may  prescribe.  An  inspec- 
tor, who  shall  be  a  civil  engineer,  skilled  in  railroad  affairs ;  also,  an 
inspector,  who  shall  be  an  expert  in  electrical  railroad  affairs,  each  of 
whom  shall  make  such  inspections  of  railroads  and  other  matters  relat- 
ing thereto,  as  directed  by  the  board,  and  report  to  it.  Such  additional 
clerical  force  as  may  be  necessary  for  the  transaction  of  its  business. 
The  board  may  also  employ  engineers,  accountants  and  other  experts 
whose  services  they  may  deem  to  be  of  temporary  importance  in  con- 
ducting any  investigation  authorized  by  la-w. 

Am'd  by  eh.  456  of  1896.     In  effect  May  9,  18Q6. 

§  154.  Oath  of  office ;  eligibility  of  officers  of  board. — Each 
commissioner,  and  every  person  appointed  to  office  by  the  board,  shall, 
before  entering  upon  the  duties  of  his  office,  take  and  subscribe  the 
constitutional  oath  of  office.  No  person  shall  be  appointed  to  or  hold 
the  office  of  commissioner  or  be  appointed  by  the  board  to,  or  hold  any 
office,  place  or  position  ander  it  who  holds  any  official  relation  to  any 
railroad  corporation,  or  owns  stock  or  bonds  therein,  or  who  is  in 
any  manner  pecuniarily  interested  in  any  firm  or  corporation  having 
business  relations  with  any  such  corporation. 

§  155.  Principal  office  and  meetings  of  boards. —  The  princi- 
pal office  of  the  board  shall  be  at  the  city  of  Albany,  in  rooms  desig- 
nated by  the  capitol  commissioners,  and  it  may  have  a  branch  office  at 
the  city  of  New  York,  and  one  at  the  city  of  Buffalo ;  and  the  board 
or  a  quorum  thereof,  shall  meet  at  least  once  a  month  during  the  year 
at  the  office  in  Albany.  The  board  shall  have  an  official  seal,  to  be 
prepared  by  the  Secretary  of  State  in  accordance  with  law,  and  its 
offices  shall  be  supplied  with  necessary  postage,  stationery,  office  fur- 
niture and  appliances,  so  be  paid  for  as  other  expenses  authorized  by 
this  article,  and  it  shall  have  prepared  for  it  by  the  state  the  necessary 

69 


RAILROAD  LAW. 

books,  maps  and  statistics,  incidentally  necessary  for  the  dis- 
charge of  its  duties. 

§  156.  Quorum  of  Loard. — Tiiree  of  the  commissioners  shall  con- 
stitute a  quorum  for  the  transaction  of  any  business,  cr  the  per- 
formance of  any  duty  of  the  board  and  may  hold  meetings  thereof 
at  any  time  or  place  within  the  state.  All  examinations  or  inves- 
tigations made  by  the  board  may  be  held  and  taken  by  and  before 
any  one  of  the  commissioners  or  the  secretary  of  the  board,  by  the 
order  of  the  board,  and  the  -proceedings  and  decisions  of  such 
single  commissioner  or  secretary,  shall  be  deemed  to  be  the  pro- 
ceedings and  decisions  of  the  board,  when  approved  and  con- 
firmed by  it. 

Amended  by  ch.  728  of  1905.     In  effect  June  3,  1905. 

§  157.  General  powers  and  duties  of  board. —  The  board  shall 
have  power  to  administer  oaths  in  all  matters  relating  to  its  duties,  so 
far  as  necessary  to  enable  it  to  discharge  such  duties,  shall  have  gen- 
eral supervision  of  all  railroads  and  shall  examine  the  same  and  keep 
informed  as  to  their  condition,  and  the  manner  in  which  they  are 
operated  for  the  security  and  accommodation  of  the  public  and  their 
compliance  with  the  provisions  of  their  charters  and  of  law.  The 
commissioners  or  either  of  them  in  the  performance  of  their  official 
duties  may  enter  and  remain  during  business  hours  in  the  cars,  offices 
and  depots,  and  upon  the  railroads  of  any  railroad  corporation  within 
the  state,  or  doing  business  therein;  and  may  examine  the  books  and 
affairs  of  any  such  corporation  and  compel  the  production  of  books  and 
papers  or  copies  thereof,  and  the  board  may  cause  to  be  subpoenaed 
witnesses,  and  if  a  person  duly  subpoenaed  fails  to  obey  such  subpoena 
without  reasonable  cause,  or  shall  without  such  cause  refuse  to  be 
examined,  or  to  answer  a  legal  or  pertinent  question,  or  to  produce  a 
book  or  paper  which  he  is  directed  by  subpoena  to  bring,  or  to  sub- 
scribe his  deposition  after  it  has  been  correctly  reduced  to  wrriting,  the 
board  may  take  such  proceedings  as  are  authorized  by  the  Code  of 
Civil  Procedure  upon  the  like  failure  or  refusal  of  a  witness  subpoenaed 
to  attend  the  trial  of  a  civil  action  before  a  court  of  record  or  a  referee 
appointed  by  such  court.  The  board  shall  also  take  testimony  upon, 
and  have  a  hearing  for  and  against  any  proposed  change  of  the  law 
relating  to  any  railroad,  or  of  the  general  railroad  law,  if  requested  to 
do  so  by  the  legislature,  or  by  the  committee  on  railroads  of  the  senate 
or  the  assembly,  or  by  the  Governor,  and  may  take  such  testimony  and 
have  such  a  hearing  when  requested  to  do  so  by  any  railroad  corpora- 
tion, or  incorporated  organization  representing  agricultural  or  com- 
mercial interests  in  the  state,  and  shall  report  their  conclusions  in 
writing  to  the  legislature,  committee,  Governor,  corporation  or  organi- 
zation making  such  request;  and  shall  recommend  and  draft  such 
bills  as  will  in  its  judgment  protect  the  people's  interest  in  and  upon 
the  railroads  of  this  state. 

70 


THE  RAILROAD  LAW. 

§  158.  Reports  of  railroad  corporations. — The  board  shall  pre- 
scribe the  form  of  the  report  required  by  the  railroad  law  to  be  made 
by  railroad  corporations,  and  may  from  time  to  time  make  suHi 
changes  and  additions  in  such  form,  giving  to  the  corporation  six 
months  notice  before  the  expiration  of  any  fiscal  year,  of  any  changes 
or  additions  which  would  require  any  alteration  in  the  method  or 
form  of  keeping  their  accounts,  and  on  or  before  June  thirtieth  in 
each  year,  shall  furnish  a  blank  form  for  such  report.  When  the 
report  of  any  corporation  is  defective,  or  believed  to  be  erroneous, 
the  board  shall  notify  the  corporation  to  amend  the  same  within 
thirty  days.  The  originals  of  the  reports,  subscribed  and  sworn  to 
as  prescribed  by  law,  shall  be  preserved  in  the  office  of  the  board. 

Amended  by  ch.  158  of  1904.     In  effect  March  28,  1904. 

§  159.  Investigation  of  accidents. —  The  board  shall  investigate 
the  cause  of  any  accident  on  any  railroad  resulting  in  loss  of  life  or 
injury  to  persons,  which  in  their  judgment  shall  require  investigation, 
and  include  the  result  thereof  in  their  annual  report  to  the  legisla- 
ture. Before  making  any  such  examination  or  investigation,  or  any 
investigation  or  examination  under  this  article,  reasonable  notice  shall 
be  given  to  the  corporation,  person  or  persons  conducting  and  manag- 
ing such  railroad  of  the  time  and  place  of  commencing  the  same.  The 
general  superintendent  or  manager  of  every  railroad  shall  inform  the 
board  of  any  such  accident  immediately  after  its  occurrence.  If  the 
examination  of  the  books  and  affairs  of  the  corporation,  or  of  witnesses 
in  its  employ,  shall  be  necessary  in  the  course  of  any  examination  or 
investigation  into  its  affairs,  the  board,  or  a  commissioner  thereof, 
shall  sit  for  such  purpose  in  the  city  or  town  of  this  state  where  the 
principal  business  office  of  the  corporation  is  situated  if  requested  so  to 
do  by  the  corporation ;  but  the  board  may  require  copies  of  books  and 
papers,  or  abstracts  thereof,  to  be  sent  to  them  to  any  part  of  this 
state. 

§  160.  Recommendations  of  board,  -where  law  has  been 
violated. —  If,  in  the  judgment  of  the  board,  it  shall  appear  that  any 
railroad  corporation  has  violated  any  constitutional  provision  or  law, 
or  neglects  in  any  respect  to  comply  with  the  terms  of  the  law  by 
which  it  was  created,  or  unjustly  discriminates  in  its  charges  for 
services,  or  usurps  any  authority  not  granted  by  law,  or  refuses  to 
comply  with  the  provisions  of  any  law,  or  with  any  recommendation 
of  the  board,  it  shall  give  notice  thereof  in  writing  to  the  corporation, 
and  if  the  violation,  neglect  or  refusal  is  continued  after  such  notice, 
the  board  may  forthwith  present  the  matter  to  the  Attorney-General, 
who  shall  take  such  proceedings  thereon  as  may  be  necessary  for  the 
protection  of  the  public  interests. 

71 


HAILROAD  LAW. 

g  1  ; ! .  Recommendations  of  board,  when  repairs  or  other 
changes  are  necessary. —  If  in  the  judgment  of  the  board,  after  a 
careful  personal  examination  of  the  same,  it  shall  appear  that  repairs 
are  necessary  upon  any  railroad  in  the  state,  or  that  any  addition  to 
the  rolling  stock,  or  any  addition  to  or  change  of  the  station  or 
station-houses,  or  that  additional  terminal  facilities  shall  be  afforded, 
or  that  any  change  of  the  rates  of  fare  for  transporting  freight  or  pas- 
sengers or  in  the  mode  of  operating  the  road  or  conducting  its  busi- 
ness, is  reasonable  and  expedient  in  order  to  promote  the  security, 
convenience  and  accommodation  of  the  public,  the  board  shall  give 
notice  and  information  in  writing  to  the  corporation  of  the  improve- 
ments and  changes  which  they  deem  to  be  proper,  and  shall  give  such 
corporation  an  opportunity  for  a  full  hearing  thereof,  and  if  the  cor- 
poration refuses  or  neglects  to  make  such  repairs,  improvements  and 
changes,  within  a  reasonable  time  after  such  information  and  hear- 
ing, and  fails  to  satisfy  the  board  that  no  action  is  required  to  be  taken 
by  it,  the  board  shall  fix  the  time  within  which  the  same  shall  be 
made,  which  time  it  may  extend.  It  shall  be  the  duty  of  the  corpo- 
ration, person  or  persons  owning  or  operating  the  railroad  to  comply 
with  such  decisions  and  recommendations  of  the  board  ns  arc  just  ar.d 
rsaronable.  If  it  fails  to  do  so  the  board  shall  present  the  facts  in  tl.c 
case  to  the  attorney-general  for  his  consideration  and  action,  and  slinll 
also  report  them  in  its  annual  or  in  a  special  report  to  the  legislature- 
Elevated  railroad  corporations  are  included  in  the  application  of  this 
section. 

Amended  by  ch.  873  of  1903.     In  effect  April  3,  1902. 

§  162.  Legal  effect  of  recommendations  and  action  of  the 
board. — No  examination,  request  or  advice  of  the  board,  nor  any  in- 
vestigation or  report  made  by  it,  shall  have  the  effect  to  impair  in  any 
manner  or  degree  the  legal  rights,  duties  or  obligations  of  any  railroad 
corporation,  or  its  legal  liabilities  for  the  consequence  of  its  acts,  or  of 
the  neglect  or  mismanagement  of  any  of  its  agents  or  employes.  The 
supreme  court  at  special  term  shall  have  power  in  its  discretion,  in  all 
cases  of  decisions  and  recommendations  by  the  board  which  are  just 
and  reasonable  to  compel  compliance  therewith  by  mandamus,  subject 
to  appeal  to  the  general  term  and  the  court  of  appeals,  and  upon  such 
appeal,  the  general  term  and  the  court  of  appeals  may  review  and  re- 
verse upon  the  facts  as  well  as  the  law. 

§  1(33.  Corporations   must   furnish   necessary   information. — 

Every  railroad  corporation  shall,  on  request,  furnish  the  board  any 
necessary  information  required  by  them  concerning  the  rates  of  fare 
for  transporting  freight  and  passengers  upon  its  road  and  other  roads 
with  which  its  business  is  connected,  and  the  condition,  management 
and  operation  of  its  road,  and  shall,  on  request,  furnish  to  the  board 
copies  of  all  contracts  and  agreements,  leases  or  other  engagements 

72 


RAILROAD   LAW. 

entered  into  by  it  with  any  person  or  corporation.  The  commissioners 
Khali  not  give  publicity  to  such  information,  contracts,  agreements, 
leases  or  other  engagements,  if,  in  their  judgment,  the  public  interests 
do  no*  require  it,  or  the  welfare  and  prosperity  of  railroad  corporations 
•>f  the  state  might  be  thereby  injuriously  affected. 

3  164.  Attendance  of  witnesses  and  their  fees.— All  subpoanas 
•.lia.ll  be  issued  by  the  president  of  the  board,  or  by  any  two  members 
thereof,  and  may  be  served  by  any  person  of  full  age  authorized  by 
the  board  to  serve  the  same.  The  fees  of  witnesses  before  the  board 
shall  be  two  dollars  for  each  day's  attendance,  and  five  cents  for  every 
mile  of  travel  by  the  nearest  generally  traveled  route  in  going  to  and 
returning  from  the-  place  where  the  attendance  of  the  witness  is 
required,  and  the  fees  shall  be  audited  and  paid  by  the  Comptroller 
on  the  certificate  of  the  secretary  of  the  commission. 

§  165.  Fees  to  be  charged  and  collected  by  the  board. —  The 

board  shall  charge  and  collect  the  following  fees :  For  copies  of  papers 
and  records  not  required  to  be  certified,  or  otherwise  authenticated 
by  the  board,  ten  cents  for  each  folio  of  one  hundred  words ;  for  cer- 
tified copies  of  oflicial  documents  filed  in  its  office,  fifteen  cents  for 
each  folio,  and  one  dollar  for  every  certificate  under  seal  affixed  thereto ; 
for  each  certified  copy  of  the  quarterly  report  made  by  u  railroad  cor- 
poration to  the  board,  fifty  cents ;  for  each  certified  copy  of  the  annual 
report  of  the  board,  one  dollar  and  fifty  cents  ;  for  certified  copies  of 
evidence  and  proceedings  before  the  board,  fifteen  cents  for  each  folio. 
No  fees  shall  be  charged  or  collected  for  copies  of  papers,  records  or 
official  documents,  furnished  to  public  officers  for  use  in  their  official 
capacity,  or  for  the  annual  reports  of  the  board  in  the  ordinary  course 
of  distribution.  All  fees  charged  and  collected  by  the  board  belong 
to  the  people  of  the  state,  and  shall  be  paid  quarterly,  accompanied 
with  a  detailed  statement  thereof  into  the  treasury  of  the  state  to  the 
credit  of  the  general  fund. 

§  166.  Annual  report  of  board. —  The  board  shall  make  an  annual 
report  on  or  before  the  second  Monday  in  January  in  each  year,  which 
shall  contain : 

1.  A  record  of  their  meetings  and  an  abstract  of  their  proceedings 
during  the  preceding  year. 

2.  The  result  of  any  examination  or  investigation  conducted  by  them. 

3.  Such  statements,  facts  and  explanations  as  will  disclose  the  actual 
workings  of  the  system  of  railroad  transportation  in  its  bearing  upon 
the  business  and  prosperity  of  the  state,  and  such  suggestions  as  to  the 
general  railroad  policy  of  the  state,  of  the  amendment  of  its  laws,  or 

73 


RAILROAD   LAW. 

the  condition,  affairs  or  conduct  of  any  railroad  corporation,  as  may 
seem  to  them  appropriate. 

4.  Drafts  of  all  bills  submitted  by  them  to  the  legislature  and  the 
reasons  therefor. 

5.  Such  tables  and  abstracts  of  all  the  reports  of  all  the  railroad 
corporations  as  they  may  deem  expedient. 

6.  A  statement  in  detail  of  the  traveling  expenses  and  disburse- 
ments of  the  commissioners,  their  clerks,  marshal  and  experts. 

Five  hundred  copies  of  the  report  with  the  reports  of  the  railroad 
corporations  of  the  state,  in  addition  to  the  regular  number  prescribed 
by  law,  shall  be  printed  as  a  public  document  of  the  state,  bound  in 
cloth  for  the  use  of  the  commissioners,  arid  to  be  distributed  by  them 
in  their  discretion  to  railroad  corporations  and  other  persons  interested 
therein. 

§  167.  Certified    copies    of  papers    filed  to    be   evidence. — 

Copies  of  all  official  documents  filed  or  deposited  according  to  law  in 
the  office  of  the  board,  certified  by  a  member  of  the  board  or  the 
secretary  thereof  to  be  true  copies  of  the  originals  under  the  official 
seal  of  the  board,  shall  "be  evidence  in  like  manner  as  the  originals. 

§  168.  Acts  prohibited. —  No  railroad  commissioner  shall,  directly 
or  indirectly,  solicit  or  request  from,  or  recommend  to  any  railroad 
corporation,  or  any  officer,  attorney  or  agent  thereof,  the  appointment 
of  any  person  to  any  place  or  position  nor  shall  any  railroad  corpora- 
tion, its  attorney  or  agent,  offer  any  place,  appointment  or  ^position 
or  other  consideration  to  such  commissioners,  or  either  of  them,  nor 
to  any  clerk  or  employe  of  the  commissioners  or  of  the  board ;  neither 
shall  the  commissioners  or  either  of  them,  nor  their  secretary,  clerks, 
agents,  employes  or  experts,  accept,  receive  or  request  any  pass  from 
any  railroad  in  this  state,  for  themselves  or  for  any  other  person,  or 
any  present,  gift  or  gratuity  of  any  kind  from  any  railroad  corpora- 
tion ;  and  the  request  or  acceptance  by  them,  or  either  of  them,  of  any 
such  place  or  position,  pass,  presents,  gifts  or  other  gratuity  thali 
work  a  forfeiture  of  the  office  of  the  commissioner  or  commissioners, 
secretary,  clerk  or  clerks,  agent  or  agents,  employe  or  employes,  expert 
or  experts,  requesting  or  accepting  the  same. 

§  1 69.  Salaries  and  expenses  of  members  and  officers  of  the 
board. — The  annual  salary  of  each  commissioner  shall  be  eiizht  thou- 
sand dollars  ;  of  the  secretary  six  thousand  dollars;  of  the  marshal  iif- 
teen  hundred  dollars;  of  the  accountant  and  of  the  inspector  such  sum 
as.  the  board  may  fix,  not  exceeding  three  thousand  dollars  each  ;  t  f 
the  clerical  force  such  sums  respectively  as  the  board  may  fix.  In  the 

74 


RAILROAD  LAW. 

discharge  of  their    official  duties,  the  commissioners,  their    officers, 
clerks  and  all  experts  and  agents  whose  services  are  deemed  tempor- 
arily of  importance,  shall    be  transported  over  the   railroads   in  this 
state  free  of  charge  upon  passes  signed  by  the  secretary  of  state  and 
the  commissioners  shall  have  reimbursed  to  them  the  necessary  travel- 
ing expenses  arid  disbursements  of  themselves,  their  officers,  clerks 
and  experts,  not  exceeding  in  the  aggregate  nine  hundred  dollars 
per  month.    All  salaries  and  disbursements  shall  be  audited  and 
allowed  by  the  comptroller  and  paid  monthly  by  the  state  treas- 
urer upon  the  order  of  the  comptroller  out  of  the  funds  provided 
therefor. 
Amended  by  ch.  728  of  1905.    In  effect  June  3,  1905. 

§  170.  Total  annual  expense  to  be  borne  by  railroads. — The 
total  annual  expense  of  the  board  authorized  by  law,  exceptii-g 
only  rent  of  offices  and  the  cost  of  printing  and  binding  the  annual 
reports  of  the  board  as  provided  by  law,  shall  not  exceed  one 
hundred  thousand  dollars ;  and  shall  be  borne  by  the  several  cor- 
porations owning  or  operating  railroads  according  to  their  means, 
to  be  apportioned  by  the  comptroller,  who,  on  or  before  July 
first,  in  each  year,  shall  assess  upon  eacL  of  such  corporations  its 
proportion  of  such  expenses,  one-half  in  proportion  to  its  net 
income  for  the  fiscal  year  next  preceding  that  in  which  the  assess- 
ment is  made,  and  one-half  in  proportion  to  the  length  of  its  main 
road  and  branches,  except  that  each  corporation  whose  line  of 
road  lies  partly  within  and  partly  without  the  state,  shall  in 
respect  of  its  net  income  be  assessed  on  a  part  bearing  the  same 
proportion  to  its  whole  net  income  that  the  line  of  its  road  within 
the  state  bears  to  the  whole  length  of  road,  and  in  respect  of  its 
main  road  and  branches  shall  be  assessed  only  on  that  part  which 
lies  within  the  state.  Such  assessment  shall  be  collected  in  the 
manner  provided  by  law  for  the  collection  of  taxes  upon  cor- 
porations. 

Amended  by  ch.  456  of  1896.     In  effect  May  9,  1896. 

.amended  by  ch.  728  of  1905.     In  effect  June  3,  1905. 

§  171.  Application  of  this  article. —  The  provisions  01  this  article 
shall  apply  to  all  railroads  within  the  state,   and  the  corporations, 
receivers,  trustees,  directors  or  others,  owning  or  operating  the  same  or 
any  of  them,   and  to  all  sleeping  and  drawing-room  car  corporations, 
and  to  all  other  associations,  partnerships  or  corporations  en.-, 
transporting  passengers  or  freight  upon  any  such  railroad  as  les£ 
otherwise. 

§  172.  The  railroad  commissioners  may  in  their  discretion  act  as 
judges  to  award  prizes  which  may  be  offered  by  any  responsible 
person  for  improvements  in  machinery  or  appliances  for  operating 

railroads. 
Added  by  chap.  452  of  1894.     Took  effect  May  3,  1894 

75 


SECTIONS  180  TO  183  INCLUSIVE  OF  CHAR  5G5  OF  IC'JO 
WEKE  REPEALED  BY  CHAR  676  OF  1892.  UXDr  •) 
SECTION  180,  THUS  BEREALED,  THE  FOLLOWING 
LAWS  WEKE  EEPE ALED : 

SCHEDULE  OF  LA.WS  REPEALED. 


Laws  of 

Tiapter 

SECTIONS. 

183G  

316  

1,   2. 

1838  

•ICO  

2,  3. 

1838  

1G1  

All. 

1839  

218  

1. 

1S46   

155  

1. 

1846  

215  

17,  18. 

18-17  

100  

3,  4. 

1847  
1847  

222  
270  

1. 
3  to  10,  both  inclusive. 

1847  
1847  

272  
404  

All. 
All. 

1850  

140  

1,  2,  12  to  28,  both  inclusive* 

30  to  37 

1851..  . 

19  

both  inclusive;  40,  43  to  51, 

All. 

both  in- 
fclnsiv 

1S51  

497  

All. 

1S54  

140  

All. 

1854  
1855  

282  
302  

4  to  15,  both  inclusive:  17,  18. 
All. 

1855  

478  

1. 

1857  

185  

1. 

1857  

444  

All. 

1858  

125  

All. 

18G3  .  . 

346.. 

All. 

76 


EC1IEDLTLK  OF  LAWS  UEPKALED  —  Continued. 


Laws  of 

Chapter 

SECTIONS. 

1864  

532  

2,  3. 

1865  

240  

I. 

18GG  

697  

All. 

1867  

254  

1. 

1867  

515  

1. 

1867  

775  

1. 

1863  

573  

All. 

18G9  

844  

1. 

1869  

917  

All. 

1871  

560  

2,  3,  5,  6,  7. 

1372 

829  

All. 

1872  

843  

2. 

1S73  

432  

All. 

1374  

430  

All. 

1875  

108  

1. 

1375  

256  

All 

1875  

586  

1,  2,  3. 

1875 

598  

1. 

1875  

606  

1  to  9,  14  to  30,  33  to  51,  all  incJuai** 

1876  

198  

2. 

1878  

261  

1. 

1879  

395  

1. 

1879  

415  

1,  2. 

IS79  

505  

All. 

1880  

5  

All. 

1880  

1. 

1880  

223  

1,  3,  4,  5. 

1880  

267  

All. 

1880  

349  

1. 

1880  

415.  

All. 

1880  

582  

All. 

1881  

148  

1. 

1881  

338  

1. 

1881  

399  

All. 

1881  

468  

1,  2,  3,  5,  6V  9,  IS- 

1881  

470  

1. 

1881   .  .  . 

485  

2,  3. 

1882 

140  

1. 

1882  .  .  . 

273  

2. 

1882  

349  

All. 

1882.... 

353  

All. 

1882 

393  

5. 

1882  

405  

1,  2. 

1883  

386  

AIL 

1884 

1  93  

All. 

1  884   

223  

All. 

1884 

252  

All. 

1884 

421  

AIL 

1884  
1884.. 

4'>2  
439  

2. 
AIL 

SCHEDULE   OP   LAWS    REPEALED — Continued. 


Laws  of 

Chapter 

SECTIONS. 

1884  

441  

AIL 

1S85  

305  

All. 

1885  

498  

1. 

1886  

65  

1. 

188G  

271  

All. 

1386  

403  

All. 

1S86  

G05  

All. 

1886  

642  

All. 

1887  
1887  

536  
616  

All. 
AIL 

1888  

]  89  

2 

1888  

514  

3. 

1888  

549  

All. 

1888  

<  60  

All. 

1889  

76   

1 

1889  

236  

All 

1889  

242  

All. 

1889  

281  

All. 

1889  

531  

All. 

1889  

532  

All. 

1889  

504  

All. 

INDEX. 


A. 

SECTION 

Abandonment,  and  change  of  road  of  steam  railways  in  cities 136 

of  part  of  road  by  street  surface  railroads 103 

Accidents,  investigation  of,  by  railroad  commissioners 159 

Accommodation  of  connecting  roads 35 

Acquiring,  real  property  for  construction  of  road 4 

title  to  real  property 7 

Acts,  certain,  by  railroad  commissioners  prohibited 168 

Additional,  corporate  powers  of  railroads  running  into  foreign  countries.  .  18. 

lands  for  intersection  of  highways 11 

officers  for  R.  R.  Commissioners 153 

duties  of 153 

powers  conferred  on  railroad  corporations 4 

safe-guards,  R.  R.  commissioners  may  approve 50 

Adoption  of  plans  and  terms  upon  which  steam  railways  in  cities,  etc., 

shall  be  built v 124 

Affidavit  attached  10  certificate  of  incorporation,  what  to  contain 2 

Agreement  to  consolidate,  etc.,  to  be  submitted  to  stockholders   71 

Alteration  of  route  of  railroad 6 

Alteration  or  reduction  of  fare  by  Legislature 38 

Alteration  of  crossing*  in  village.?,  etc 62 

Amount  of  capital  stock  on  consolidation 71 

Annual  expense  of  R.  R.  commission  to  be  borne  by  railroads 170 

Annual  report,  must  be  made 57 

of  R.  K.  commissioners 166 

Application  of  statute  relating  to  consolidation 84 

for  construction  of  other  road  in  cities  and  counties , 120 

Appointment  of  R.  R.  commissioners 150 

Application  of  article  6  of  Railroad  Law 171 

Appraisal  of  damages  and  deposit  of  money  as  security  for  steam  rail- 
ways in  cities,  etc 125 

Articles  of  incorporation  of  railroads 2 

Assessment  of  property  after  consolidation 74 

Attendance  of  witnesses  before  R.  R.  commissioners 164 

Automatic,    brake 49 

couplers 49 

B. 

Badges  to  be  worn  by  conductors  and  employees 43 

Baggage,   checks  for 44 

unclaimed 46 

79 


INDEX. 

SECTION 
Board  of  R.  R.  commissioners 1 50- 171 

total  expenses  to  be  borne  by  railroads 170 

Brakemen  as  policemen 58 

Brakes ". 49 

Bridge,  crossing  by  street  surface  railroads •  102 

Buffalo,  exception  as  to  change  of  grade  in 13 

as  to  grade  crossings  in 69 

Buildings  and  stations,  railroad  company  may  erect 4 

c. 

Canal,  railroad  may  cross 4 

Canada  thistles  to  be  cut 52 

Capital  stock,  amount  to  be  paid  in  cash,  preliminary 2 

of  railroad,  amount  required 2 

certificate  of  incorporation  to  specify 2 

Cattle  guards 32 

Centre-bearing  rails  prohibited ! 109 

Certain  roads  to  cease  in  winter 55 

Certificate,  of  stock  may  be  issued  after  foreclosure  in  certain  cases 82 

of  incorporation  of  railroads 2 

effect  of  filing  before  stock  paid  in 2 

kind  of  railroad  to  be  specified 2 

supplemental    _. 3 

what  to  contain 2 

affidavit  concerning,  what  to  contain 2 

of  incorporation  of  steam  railways  in  cities,  etc 126-128 

of  incorporation,  verification  of 2 

of  incorporation,  when  payment  of  capital  stock  to  be  recited  in.  ...  2 

of  incorporation,  when  void 2 

Certified  copy  of  paper  filed  with  R.  R.  commissioners,  to  be  evidence.  ...  167 

Change  of  route,  grade  or  terminus 13 

Changes,  recommendations  by  K.  R.  commissioners  of 161 

Chautauqua  Assembly,  railroads  through 10 

Checks,  for  connecting  steamboats 47 

tor  baggage 44 

Classification  of  stock,  certificate  of  incorporation  to  specify 2 

Commissioners  for  steam  railways,  in  cities,  appointment  of 120 

adoption  of  plans  by 124 

appraisal  of  damages 125 

bond  of  121 

certificate  of  incorporation,  shall  prepare 12(5 

to  deliver * 128 

determination  of  necessity  for  road 123 

first    meeting    of 122 

oath  of ' 121 

organization  of  board  of 127 

pay    of 134 

powers  of 129 

80 


INDEX. 

Commissioners  for  steam  railways,  in  cities — Continued.  SECTION 

quorum   of ,«.. 135 

report    of 133 

term  of  office  of 135 

to  transfer  plans 132 

vacancies    135 

Commissioners,  R.  K.,  certain  acts  by,  prohibited 168 

fees  to  be  charged  and  collected  by 165 

legal  effect  of  recommendations  of 162 

when  supreme  court  to  appoint 96 

Commissioners  to  examine  route 6 

report  of 6 

Common  carriers  not  to  give  preferences .  -. 34 

railroad,  rights  and  liabilities  as 48 

Common  stock,  certificate  of  incorporation  to  specny 2 

rights    and   privileges   of    stockholders,   certificate   of  incorporation 

to  specify   2 

Companies,  liability  of,  to  employees  of  contractor 30 

must  furnish  necessary  information  to  R.  R.  commissioners 163 

may   establisn    ferries 54 

of  other  states,  powers  of 77 

owning  continuous  lines,  consolidation  of 70,  71,  72 

Concourse  lands,  railroad  through  not  allowed 8 

Conditions  upon  consolidation,  etc 71 

Condition  upon  which  consent  to  street  surface  railroads  shall  be  given .  .  93 

Conductors,  and  brakemen  as  policemen 58 

and  employees  must  wear  badges 43 

persons  employed  as 42 

Confirmation  of  report  of  commissioners  for  steam  railways  in  cities. ...  133 

Connecting  roads,  accommodation  of 35 

steamboats,  tickets  and  checks  for 47 

Consent,  of  local  authorities  to  street  surface  railroads 91,  92 

of  property  owners  to  street  surface  railroads 91 

to  street  surface  railroads,  condition  upon  which  given 

for  street  surface  railroads,  former,  ratified 106 

Commissioners  for  steam  railways,  terms  of 

Commissioners  for  street  surface  roa4s,  when  property  owners  do  not 


consent 


06 


consent,  of  property  owners  of  street  railroads 

proceedings,  when  owners  refuse  to 

of  local  authorities 

upon  what  conditions  given 

Consolidation,  and  lease  of  parallel  lines  prohibited 

lease,  sale  and  reorganization  of  railroads 70.  8: 

•Consolidated  roads,  forelosure  by 

of  companies,  owning  continuous  lines 70,  ,  1 . 

conditions 

application  of  statute,  etc 


INDEX. 

SECTION 

Construction  of  part  of  line  in  another  state 14 

of  roads    4 

of  street  surface  railroads  in  streets  where  other  roads  are  built .  . .  102 

operation  and  management  of  railroads 30-59 

Contents  of  certificate  of  incorporation  of  railroads ' 2 

Continuous  lines,  consolidation  of  companies  owning 70,  71,  72 

Contracting  companies  of  street  surface  railroads  to  carry  for  one  fare. .  104 

Contractor,    employees    of,    liability    to 30 

Contractor,  employees  of,  liabilities  of  companies  to 30 

Corporate  powers,  when  to  cease 5 

of  railroad  in  foreign  countries 18. 

Corporate  rights  of  street  surface  railroads  saved  on  failure  to  complete 

road   106 

Corporations,  generally  may  lay  down  and  maintain  railroad  tracks 20 

may  establish  ferry 54 

must  make  annual  report 57 

must  furnish  necessary  information  to  R.  R.  commissioners 163 

Couplers 49 

Creditors,  rights  not  affected  by  consolidation 73 

Crossings,  grade,  locomotives  must  stop  at 36 

mayor,  etc.,  may  petition  for  change  of 62 

of  horse  railroad  track  in  cities,  etc 130 

signboards  and  flagmen  at 33 

D. 

Determination  of,  necessity  for  railroads,  and  of  route  in  cities 123 

Directors,  certificate  of  incorporation  to  specify  names  and  addresses  of . .  2 

numbers  of,  limited 2 

of  steam  railways  in  cities,  etc 128 

Dissolution  of  street  surface  railroads,  effect  of 105 

Drivers,  persons  employed  as 42 

Duties  imposed  to  insure  safety 49 

of  additional  officers  of  R,.  R.  commissioners 153 

of  R.  R.  commissioners 157 

E. 

Effect  of  dissolution  of  charter  of  street  surface  railroads  as  to  consents. .  105 

Ejection  of  passenger  for  refusing  to  pay  fare 40 

Electric  light  and  power  companies,  powers  of,  etc 21 

Eligibility  of  officers  of  board  of  R.  R.  commissioners ,  154 

Eminent  domain,  substituted  lines  in  cases  of 22 

Employees  must  wear  badges 43 

of  contractor,  liabilities  of  companies  to 30 

of  street  surface  railroad,  protection  of 111-111-a 

Entry  upon  lands  for  purposes  of  survey 4 

Evidence,  papers  tiled  with  R.  R.  commissioners  certified,  copies  of,  to  be.  167 

Excessive  fare,  penalty  for 39 

Expense  of  R.  R.  commissioners  and  employees 169 

total  to  be  borne  by  railroads 170 

82 


INDEX. 

SECTION 

Extension  of  route  of  street  surface  railroads  over  rivers 96 

Kxtcnsion  of  time  to  construct  road  in  cities,  etc 142 

Extra  fare  for  sleeping  cars 41 

F. 

Fare,  for  sleeping  cars , 41 

Legislature  may  alter  or  reduce 38 

on    street    surface    railroads,    rate  of 101 

passenger  refusing  to  pay  may  be  ejected 40 

penalty    for   excessive 39 

rates  of 37 

Farm   crossings,    etc 32 

Fees  of  railroad  commissioners,  etc ](;."> 

Fences,  farm  crossings  and  cattle  guards 32 

Ferries  may  be  established  by  companies 54 

Flagmen  at  crossings 33 

Foreign  countries,  railroads  running  into 17 

Foreign  corporations,  powers  of  on  consolidation 77 

Foreclosure,  certificate  of  stock  may  be  issued  after,  in  certain  cases. ...  82 

of  mortgages  made  by  consolidation  of  railroads  in  this  state. ...  76 

sale,  mortgagee  may  purchase  at 81 

Form  of  certificate  of  incorporation  of  railroads 2 

Franchises  of  street  surface  railroads,  sale  of,  at  public  auction 93 

Freight  and  baggage,  unclaimed 46 

Furnaces,  use  of,  in  cars  prohibited 51 

G. 

Gates,  railroad  in  cities  to  erect 139 

General  powers  ol  railroads 1-21 

General  powers  ot   K.   R.  commissioners 157 

General  provisions  as  to  street  surface  railroads 90 

Grade,  change  of 13 

crossings,  locomotives  must  stop  at 36 

crossings 60-69 

Gripmen,  persons  employed  as 42 

Guard   posts    49 

H. 

Highway,  railroad  may  cross 

additional  lands  for  intersection  of 11 

crossings    over,    etc 60-69 

I. 

Ice  and  snow,  removal  of,  by  street  surface  railroads 98 

Increased  deposit  by  steam  railways  in  cities,  when  and  how  required..  137 

Incorporation  of  railroads 

certificate  of,    what  to   contain 

supplemental  certificate   of 


INDEX. 

SECTION 

Indian    lands,    railroads    through 9 

Individual  may  lay  down  and  maintain  railroad  tracks 20 

Injury  to  baggage,  penalties  for 45 

Intersection  of   highways,   additional   lands   for 11 

of  other  roaus,  etc.  .  : 4-12 

Investigation  of   accidents   by   railroad   commissioners 159 

J. 

Joint    agreement   on    consolidation . . 71 

Joint  stock  association  may  lay  down  and  maintain  railroad  tracks 20 

K. 

Kind  of  railroad  company,  certificate  of  incorporation  to  specify 2 

L. 

Lease  of  parallel  lines,  when  prohibited 80 

sale  and  reorganization  of  railroads 70-83 

Leases  of   roads 78 

Lessees  of  railroads  may  acquire  stock 79 

Legal  effect,  recommendation  of  R.  R.  commissioners 162 

Legislature  may  alter  or  reduce  fare 38 

Length  and  termini  of  railroad,  certificate  of  incorporation  to  -specify . .  2 

Liabilities,  as  common  carriers 48 

of  reorganized  railroad  companies 83 

of  companies  to  employees  of  contractor 30 

Limitation  of  corporate  rights  of  street  surface  railroads 106 

Location,  of  principal  office,  companies  running  into  foreign  countries.  . .  19 

of    railroads 1-21 

of  route  of  road 6 

commissioners,  when   appointed 6 

report  of  commissioners 6 

alteration  of,  by  commissioners 6 

map  showing  alterations,  if  any,  to  be  filed 6 

hearing  on  petition  of  owner 6 

map  of,  to  be  made  and  filed 0 

notice  to  be  served 6 

occupant  aggrieved  may  apply  to  court  for  relief 6 

Locomotives  to  stop  at  grade  crossings 36 

M. 

Maps  of  route  to  be  filed 6 

Mails   • 56 

Management  of  railroads 30-69 

Marshal  of  R.  R.  commissioners 152 

Mayor  may  petition  for  change  of  grade 62 

^footings  of  R.  R.  commissioners 155 

Merchandise  of  intersected  road  to  be  transmitted 12 

Mortgage  of  property  of  railroad  company,  right  to 4 

84 


INDEX. 

SECTION 

Mortgagee  may  purchase  at  foreclosure  sale 81 

Mortgages  made  by  consolidated  railroads,  foreclosure  of 76 

Motive  power  of  street  surface  railroads IOC 

Municipal  companies,  stock  of,  how  represented 75 

Municipal  corporation  may  acquire  lands  adjacent  to  railroad,  etc 63 

N. 

Name  of  railroad  corporation,  certificate  of  incorporation  to  specify 2 

Name  of  station  in  villages,  etc 34 

Narrow  guage  road,  capital  stock  required t 2 

New  commissioners  upon  abandonment  of  route  of  steam  railways  in 

cities 136 

New  companies  formed  by  consolidation,  status  and  powers  of 72 

Notice  of  proposed  route,  service  of 8 

Notice  of  starting  trains 34 

o. 

Oath,  and  bond  of  commissioners  for  steam  railways  in  cities,  etc 121 

of  R.  R.  commissioners  154 

Officers  of  street  surface  railroad  to  report  receipts,  etc.- 95 

Operation  and  management  of  railroads 30-59 

Organization  of  railroads   » 1-21 

of  steam  railways  in  cities,  etc 127 

Overhead  bridge,  construction  of   64 

Owner  or  occupant,  may  apply  to  court  to  change  route 6 

P. 

Packages,   penalties   for   injuries   to 45 

Parallel  lines,  consolidation  and  lease  of,  prohibited 80 

Parlor  cars,  fare  in 41 

Part  of  line  in  another  state,  construction  of 14 

Passenger  refusing  to  pay  fare  may  be  ejected 40 

Pay  of  commissioners  for  steam  railways  in  cities 134 

Payment  of  capital  stock  in  cash,  to  be  specified  in  certificate 

Penalties  applicable  to  steam  railways  in  cities 140 

for  injury  to  baggage 45 

for  excessive  fare  

for  excessive  fare  by  street  surface  railroads 104 

for  violation  of  railroad  law  by  steam  railroads  in  cities 140 

Percentage  of  gross  receipts  to  be  paid  in  cities  and  villages  by  street 

surface  railroads    

report  of  officers  as  to 

Persons  employed  as  drivers  and  conductors 

transportation  of,  power  of  company 

Plank  road,  railroad  may  intersect 

Platform,  riding  on  

Policemen,   conductors   and   brakemen   as 58 


INDEX. 

SECTION 

Power  companies,  powers  of i'.  1 

Powers,  of  companies  of  other  states 77 

of  electric  ligflt  and  power  companies 21 

of  K.  R.  commissioners 157 

of  steam  railways  in  cities,  etc 129 

of  railroad   companies,   additional,   granted 4 

to  acquire  real   property 4 

to  borrow  money    4 

to  construct  buildings   4 

to  intersect  railroads 4 

to  intersect  streams   4 

to  lay   out  road 4 

to  mortgage  its  property 4 

to  purchase  lands  in  other  states 4 

to  regulate  time  and  manner  of  transportation 4 

to  transport  persons  and  property 4 

to  unite  with  other  roads 4 

when  corporate  powers  to  cease 5 

Principal  office,  of  R.  R.  commissioner 2,  155 

of  railroad  in  foreign  country 19 

Preferences  by  commgn  carriers  forbidden 34 

Preferred  stock,  certificate  of  incorporation  to  specify 2 

rights  and  privileges  of,  certificate  of  incorporation  to  specify 2 

Proceedings  if  property  owners  do  not  consent  to  street  surface  railroads.  94 

Property,  right  of  company  to  transport 4 

assessment  of,  of  new  corporations 74 

Protection  of  employees  of  street  surface  railroads lll_lllr\ 

Public  buildings,   street   surface  railroads  not   to  be  constructed   upon 

ground   occupied   by    10S 

lands,  railroads  through    & 

parks,  tunnel  not  to  be  constructed  under 1C 

parks,  roads  not  to  be  constructed  upon  ground  occupied  by 108 

Purchase  of  lands  and  stock  in  other  states 4 


Qualification  of  officers  of  R.  R.  commissioners 154 

Quorum  of  R.  R.  commissioners 156 

K. 

Rail,  weight  of  31 

center-bearing,  use  of,  by  street  surface  railroad  forbidden 109 

Railroad  act,  application  of 171 

Railroad  commissioners,  board  of   150-171 

acts    prohibited     168 

appointment  of  commissioners    1 50 

application  of  article  6,  Railroad  Law 171 

additional  officers   1  ^ 

duties   of    ! ;':' 

annual   report  of    166 

attendance  of  witnesses    164 


INDEX. 

Railroad  commissioners — Continued.  SECTION 

.    certified  copies  of  papers  filed  as  evidence 167 

corporation  must  furnish  necessary  information  to 163 

eligibility   of   officers  of j  f,  j 

expenses   of   members,   etc 169 

fees  to  be  charged 165 

general   powers  and  duties '. 157 

investigation  of  accidents    1 59 

legal  effect  of  action  by 162 

marshal    of      152 

meetings  of 155 

oath   of  office    154 

principal  officer  of 155 

quorum  of    156 

lecommendations,  where  law  violated 160 

where  repairs,  etc.,  necessary 161 

imports  of  railroad  corporations 158 

salaries 169 

secretary  of 152 

suspension  Irom  office 153 

total  annual  expense  to  be  borne  by  railroads 170 

Railroad  companies, 

consolidation,  lease,   sale  and  reorganization 70-84 

assessment  of  property  of  new  corporation  after 74 

certificate   of    stock   after   foreclosure 82 

conditions   71 

of  corporations  owning  continuous  lines 70 

creditors'  rights   not  to  be  impaired 73 

foreclosure  by  consolidated  roads,  etc 76 

lease  of  road 78 

lessees  may  acquire   stock 79 

liabilities  of  reorganized  companies 83 

mortgagee  may  purchase  in  foreclosure 81 

new  corporation   72 

powers   of  corporations  of  other  states 77 

stock  of  municipal  corporations,  etc 75 

statute  relating  to,  application  of 84 

additional  powers  conferred  on 4 

location  of  route   6 

may  acquire  real  property 4 

may  borrow  money    4 

may  construct  buildings    4 

may  enter  lands  for  purpose  of  survey 4 

may  intersect   streams,  etc 4 

may  intersect  other  railroads 4 

may  lay  out  and  construct  road 4 

may  mortgage  corporate  property,  franchises  to  secure  debts 4 

may  purchase  lands  in  other  states 4 

may  regulate  time  and  manner  of  transportation 4 

S7 


INDEX. 

Railroad  companies — Continued.  SECTION 

may  transport  persons  and  property 4 

may  unite  with  other  roads 4 

must  restore  highway  intersected,  etc 11 

powers,  additional,  conferred  on , 4 

possess  powers  conferred  by  general  and  stock  corporation  laws ....  4 

report  of,  to  R.  R.  commissioners 158 

reorganized,  liabilities  of   83 

section  24  of  Stock  Corporations  Law  not  applicable  to 23 

shall  forward  merchandise  of  other  roads  when  crossing  same 12 

stations  and  buildings    4 

time  and  manner  of  transportation  by 4 

transportation  of  persons  and  property 4 

when  corporate  powers  to  cease 5 

in  foreign  countries  17 

law,  chapter  39  of  general  laws,  to  be  known  as 1 

not  longer  than  sixteen  miles,  may  operate  during  certain  months. .  21 

route   of    6 

station,  consent  of  railroad  commissioners  to  discontinuance  neces- 
sary    34 

Railroad, 

construction  of  other,  in  cities  and  counties 120-142 

application  for 120 

commissioners,  appointment  of .- 120 

adoption  of  plans  by 124 

appraisal    of    damages,    etc 125 

bond  of   121 

certificate  of  incorporation,  shall  prepare 126 

to  deliver   128 

determination  of  necessity  for  road,  etc i23 

first  meeting  of 122 

oath  of   121 

organization  of  127 

pay  of   134 

powers  of 129 

quorum    of 135 

report  of,  confirmation  of 133 

term  of  office  of 135 

to    file    report 133 

to  transfer  plans,  etc 132 

vacancies,  etc 1 35 

crossing  of  horse  railroad  track 130 

extension  of  term ..  .  .  142 

gates 1:59 

increased  deposit   , 131 

penalty  for  violation   of  railroad  law 140 

route,   abandonment   or   change    of 13fi 

coinciding  with   other  route 131 

sections  of  law  to  be  printed  and  posted 141 

trains   to   come   to   full    stop 138 

88 


INDEX. 

SECTION 

Railroads,  certain,  may  cease  operations  in  winter 55 

certificate  of  incorporation  of   2 

effect  of  filing  before  stock  paid  in 2 

kind  of  railroad  must  be  specified  in 2 

what  to  contain   2 

(supplemental - S 

construction,  operation  and  management  of 30-69 

accommodation  of  connecting  roads 3.5 

Canada  thistles  to  be  cut 52 

certain  roads  to  cease  in  winter 55 

checks   for  baggage 44 

conductors  to  wear  badges 43 

corporation   may  establish   ferry 54 

corporation  must  make  annual  reports 57 

duties   imposed    4!) 

extra  fare  for  sleeping  car 41 

fences,  etc 12 

grade   crossings    .  . 60—60 

legislature  may  alter  or  reduce  fare 38 

locomotives  at  grade  crossings  :',(} 

liability  to  employees  of  contractor 30 

mails 5(5 

notice  of  starting  trains 34 

passenger  refusing  to  pay  fare 40 

penalty    for    excessive   fare 39 

for  injury  to  baggage   , 45 

rates   of   fare    , 37 

R.  R.  commissioners  approve  safeguards _.  .  50 

certify  part  of  route   50a 

requisites  as  to  future  railroads 59 

revocation'  of  consent   59b 

riding  on  platform    53 

rights   as  common  carriers 48 

signboards 33 

tickets  for  connecting  boats 47 

unclaimed   freight    46 

use  of   stoves   prohibited 51 

weight   of   rail    31 

when  conductors  may  be  policemen 58 

having  same  location l£> 

incorporation    of 2 

intersecting  each  other   12 

in  foreign  countries    17 

additional   corporate  powers  of 18 

principal   office   of    19 

management  of    - 30-69 

operation   of    • 30-69 

organization  of,  general,  powers  and  location  of 21 

89 


INDEX. 
Railroads — Continued.  SECTION 

rights  and  liabilities  as  common  carriers 4.3 

supplemental    certificate    of    incorporation    of 3 

surface  steam,  must  avoid  crossing  at  grade 60 

new  street  must  pass  under  or  over 61 

through  Chautauqua  Assembly   10 

through  concourse  lands,  not  allowed 8 

through   Indian  lands    9 

through    public    lands     8 

through  reservation  at  Niagara,  not  allowed 8 

tunnel 16 

to  give  no  preferences  in  business  as  common  carriers 34 

Railroad  tracks,  individual  may  lay  down,  etc 20 

Rates  of   fare    37 

Rate  of  fare  of  street  surface  railroads 101 

Rate  of  speed  of  street  surface  railroads 98 

Real  property,  acquisition  of  title  to 7 

Recommendations  of  board  of  R.  R.  commissioners,  when  changes   «rc 

necessary 1 01 

legal    effect    of 102 

where  law  has  been  violated , 160 

Reduction  of  fare  by  legislature 38 

Refusal  of  passenger  to  pay  fare;   may  be  ejected 40 

Removal  of  snow  and  ice  by  street  surface  railroads 98 

Reorganization  of   railroads    70-83 

Reorganized  railroad  companies,  liabilities  of 83 

Repairs,  of  streets  by  street  surface  railroads 98 

recommendations  of,  by  R.   R.  commissioners 161 

Report,  of  receipts  by  officers  of  street  surface  railroads 95 

of  railroad  companies  to  R.  R.  commissioners 158 

Requisites  as  to  exercise  of  power  of  future  railroad  companies 59 

Reservation  at  Niagara,  railroad  through  not  allowed 8 

Revocation   of   consent,   etc 59b 

Riding  on  platform   53 

Right  to  operate  branches  by  street  surface  railroads 106 

Rights  and  liabilities  as  common  carriers 48 

Roads,  leases  of    78 

Route,  change  of    13 

of    railroad 6 

alteration  of  by  commissioners 6 

commissioners,  when  appointed    6 

hearing  on  petition  of  aggrieved  owner 6 

maps  to  be  made  and  filed 6 

maps  showing  alterations  to  be  filed 6 

notice  to  owner    6 

occupant  or  owner  may  apply  to  court  for  relief 6 

R.  R.  commissioners  may  certify  as  to  part  of 50a 

of  steam  railroad  in  cities 134,  1 2S 

abandonment   of    136 

coinciding  with  other  routes 131 

Running  of  trains  on  steam  railways  in  cities 138 


INDEX. 

g.  SECTION 

Safeguards,  R.  R.  commissioners  may  approve  additional 50 

Safety  brake  49 

Salaries  of  It.  It.  commissioners  and  employees 169 

Sale  and  reorganization  of  railroads 70-84 

Sale  of  franchises  of  street  surface  railroads  at  public  auction, 93 

Sand,  use  of,  on  tracks 107 

Secretary  of  R.   R.  commission 152 

Section  24  of  Stock  Corporations  Law  not  applicable  to  railroads 23 

Sections  of  law  to  be  printed  and  posted 141 

Shares  of  stock,  certificate  of  incorporation  to  specify. 2 

Short  title   1 

Signboards  and  flagmen  at  crossings 33 

Signals 49 

Sleeping  cars,  fare  for 41 

Snow,  removal  of,  by  street  surface  railroads 98 

Stations,  names  of ,  in  villages 34 

Stock,  held  by  municipal  corporation,  how  represented 75 

subscribers  to,  certificate  of  incorporation  to  specify 2 

Stockholders,  agreement  to  consolidate  to  be  submitted  to 71 

Stopping  of  trains,  by  steam  railways  in  cities 138 

Stoves  and  furnaces,  use  of,  in  cars  prohibited 51 

Steam  railways  in  cities  to  print  and  post  certain  sections  of  the  law. .  141 

Steam  surface  railroads  must  avoid  street  crossings  at  grade 60-G9 

new  street  must  pass  under  or  over 61 

Steam  railways  in  streets,  avenues  and  public  places,  in  cities  and  coun- 
ties, application  for 120 

Stock  corporation,  section  24,  application  of 23 

Streams,  railroad   may  intersect 4 

Street  must  hereafter  pass  under  or  over  steam  road Gl 

Street  surface  railroads   90-1 1 1  a 

abandonment  of  part  of  route 103 

center-bearing  rails  prohibited    109 

consent  of  property  owners 91 

of  local  authorities    91-02 

upon  what  conditions  given 93 

construction  of  road,  when  other  road  built 102 

contracting  corporations  to  carry  for  one  fare 104 

corporate  rights  saved,  etc 106 

effect  of  dissolution  105 

extension  of  route,  etc 06 

general   provisions    , 00 

motive  power    100 

new  road  in  cities  and  counties 120-142 

percentage  of  gross  receipts,  in  villages,  etc 03 

report  of  officers  as  to 95 

proceedings  when  property  owners  fail  to  consent 04 

protection   of   employees    lll_llln 

R.  R.  commissioners  may  certify  part  of  route  of,  etc 59a 

91 


INDEX. 

•Street  surface  railroads — Continued.  SECTION 

rate  of  fare   101 

rate  of  speed    gs 

repair  of  streets   9>$ 

removal  of  ice  and  snow ' 9^ 

right  to  cross  bridge 1 10 

sale  of  franchise  at  public  auction 93 

use  of  tracks  of  other  roads 97 

when  sand  may  be  used  on  tracks 107 

within  what  time  to  be  built 99 

rights  after  having  crossed  bridge  for  five  yean: 110 

Streets  through  which  street  surface  road  runs,  certificate  of  incorpora- 
tion to  specify •      2 

Subscribers  to  stock,  certificate  of  incorporation  to  specify 2 

Substituted  lines  in  cases  of  eminent  domain 22 

Supplemental  certificate  of  incorporation 3 

Supreme  court,  may  appoint  commissioners,  when  property  owners  fail 

to  consent  to  street  surface  railroad 96 

Supreme  court,  may  compel  compliance  with  recommendations  of  R.  R. 

commissioners 162 

may  extend  time  under  requirements  of  article  five 142 

Suspension  of  R.  R.  commissioners 151 

Switches 49 

T. 

Terminus,  change  of   13 

of  street  surface  railroads  in  other  counties 96 

Thistles,  Canada,  to  be  cut 52 

Tickets  and  checks  for  connecting  steamboats 47 

Title  of  chapter 1 

Tools  in  passenger  cars 49 

Track,  walking  along   53 

Tracks  of  other  road,  use  of,  by  street  surface  railroad 97 

Trains,  notice  of  starting 34 

Trains  to  come  to  full  stop  in  cities 138 

Transportation  of  persons  and  property,  power  of  company  as  to 4 

Tunnel,  railroad   16 

Turnpike,    railroad    may    intersect v 4 

Two   roads  embracing  same   location 15 

u. 

Unclaimed  freight  and  baggage 46 

Use  of  stoves  and  furnaces  in  cars  prohibited "      51 

Use  ef  track  of  other  roads  by  street  surface  railroads 97 

V. 

Vest.bules,  act  relating  to 111-llla 

Villages,  name  of  stations  in 34 

Violation  of  law,  recommendations  of  R.  R.  commissioners  as  to. ...:...  160 

92 


INDEX. 

\y  SECTION 

W  alking  along  track  .3:} 

Warning  signals   48 

Water,  supply  of,  in  cars 49 

Waters,  what  shall  not  be  taken  by  railroads 7 

Weight  of  rail    31 

When  conductors,  etc.,  may  be  policemen 58 

Winter,  certain  railroads  may  cease  operation  in 55 

Witnesses  before  si.  R.  commissioners  and  their  fees 164 


.  566  of  189O. 

AN  ACT  in  relation  to  transportation  corporations,  excepting  rail- 
roads, constituting  chapter  forty  of  the  general  laws. 

APPROVED  by  the  Governor  June  7,  1890.     Passed,  three-fifths  being  present. 

The  People  of  the  State  of  New    York,  represented  in  Senate  and 
Assembly,  do  enact  as  follows  : 

CHAPTER  XL  OF  THE  GENERAL  LAWS. 

THE   TRANSPORTATION   CORPORATIONS   LAW. 

ARTICLB  1.. Ferry  corporations  (§§  1-6). 

2.  Navigation  corporations  (§&  10-13). 

3.  Stage-coach  corporations  (§§  20-22). 

4.  Tramway  corporations  (§§  30-33). 

5.  Pipe-line  corporations  (§§  40-54). 

6.  Gas  and  electric  light  corporations  (§§  60-71). 

7.  Water-works  corporations  (§§  80-85). 

8.  Telegraph  and  telephone  corporations  (§§  100-109). 

9.  Turnpike,  plank-road  and  bridge  corporations  (§§  120-161). 
10.  Miscellaneous  provisions  (§§  160-163). 


ARTICLE  I. 

PERRY   CORPORATIONS. 

SBOTION  1.  Short  title  of  chapter. 

2.  Incorporation  of  ferry  corporations.  w 

3.  Payment  of  capital  stock. 

4.  Powers. 

5.  Effect  of  failure  to  pay  in  capital  stock. 

6.  Posting  schedule  of  rates. 

SECTION  1.  Short  title  of  chapter. — This  chapter  shall  be  known 
as  the  transportation  corporations  law. 

§2.  Incorporation  of  ferry  corporations. — Three  or  more  per- 
sons may  become  a  corporation  for  conducting  and  managing  a  ferry, 
by  executing,  acknowledging  and  filing  a  certificate,  stating  the 
name  of  the  corporation,  the  places  from  and  to  which  the  ferry  estab- 
lished or  to  be  established  shaE  run  ;  the  terra  not  exceeding  fifty  years 
for  which  the  corporation  is  to  exist,  the  amount  and  number  of  shares 
of  its  capital  stock ;  the  number  of  directors  thereof,  not  less  than 
three  nor  more  than  fifteen,  and  the  names  of  the  directors  for  the  first 
year. 

§8.  Half  of  capital  to  be  paid  in  before  commencing  busi- 
ness.— No  ferry  corporation  shall  be  authorized  to  commence  busi- 

1 


•^  .^PORTATION  CORPORATIONS  LAW. 

ness  until  at  least  one-half  its  capital  shall  have  been  actually  paid  in, 
nor  until  affidavits  of  such  payment,  sworn  to  by  a  majority  of  the 
directors,  shall  have  been  filed,  in  each  of  the  offices  in  which  the  cer- 
tificate of  incorporation  is  required  to  be  filed. 

§  4.  Powers. — In  addition  to  the  powers  conferred  by  the  general 
and  stock  corporation  laws,  any  such  corporation  shall  have  power  to 
take  by  grant  from  any  authority  entitled  by  the  laws  of  this  state  to 
make  such  grant,  or  by  assignment,  the  franchise  or  right  to  establish 
and  maintain  ferries,  at  the  place  specified  in  the  certificate  of  incor- 
poration, and  to  hold  and  exercise  such  franchise  or  right  and  carry 
on  the  business  appertaining  thereto,  subject  to  the  rights  of  the  mayor, 
alderman  and  commonalty  of  the  city  of  New  York,  or  any  other  mu- 
nicipal corporation,  or  of  the  owner  or  owners  of  any  legally  existing 
ferry,  or  the  vested  rights  of  any  other  corporation  whatever. 

§  5.  Effect  of  failure  to  pay  in  capital  stock. — The  capital  stock 
of  every  such  corporation  shall  all  be  paid  in,  one-half  thereof  within  one 
year  and  the  other  half  thereof  within  two  years  from  its  incorpora- 
tion, or  such  corporation  shall  be  dissolved. 

§  6.  Must  post  schedule  of  rates. — Every  corporation  operating 
any  ferry  in  this  state,  or  between  this  state  and  aiiy  other  state, 
and  from  or  to  a  city  of  five  hundred  thousand  inhabitants  or  over, 
shall  post  in  a  conspicuous  and  accessible  place  in  each  of  its  ferry- 
houses,  in  plain  view  of  the  passengers,  a  schedule  plainly  printed  in 
the  English  language,  of  the  rates  of  ferriage  charged  thereon  and  aur 
thorized  by  law  to  be  charged  for  ferriage  over  such  ferry. 

ARTICLE  II. 

NAVIGATION  CORPORATION.* 

SECTION  10.  Formation  of  corporation. 

11.  Navigation  between  additional  ports. 

12.  Payment  of  capital  stock. 

13.  Ferries  unauthorized. 

§  10.  Formation  of  corporation. — Seven  or  more  persons  may  be- 
come a  corporation,  for  the  purpose  of  building  for  their  own  use, 
equipping,  furnishing,  fitting,  purchasing,  chartering,  navigating  or 
owning  steam,  sail  or  other  boats,  ships,  vessels  or  other  property  to  be 
used  in  any  lawful  business,  trade,  commerce  or  navigation  upon  the 
ocean,  or  any  seas,  sounds,  lakes,  rivers,  canals  or  other  waterways, 
and  for  the  carriage,  transportation  or  storing  of  lading,  freight,  maiK 
property  or  passengers  thereon  by  making,  signing,  acknowledging  ;m<l 
filing  a  certificate,  stating  the  name  of  the  corporation,  the  specific 

*So  in  the  original.          _, 


TRANSPORTATION  CORPORATION  LAW. 

objects  for  which  it  is  formed,  the  waters  to  be  navigated,  and  in  case 
of  ocean  steamers,  the  ports  between  which  such  vessels  are  intended  to 
De  navigated,  the  amount  of  its  capital  stock,  which  shall  not  be 
than  five  thousand,  nor  more  than  four  million  dollars,  the  term  of  iu 
existence,  not  to  exceed  fifty  years,  the  number  of  shares  of  which  the 
capital  stock  shall  consist,  the  number  of  directors  thereof,  not  less  than 
five  nor  more  than  thirteen,  the  names  of  the  directors  for  the  first  year, 
and  the  name  of  the  city,  village  or  town  and  county  in  which  its 
principal  office  is  to  be  situated,  the  number  of  shares  of  stock  which 
oach  subscriber  of  the  certificate  agrees  to  take,  which  must  in  the 
aggregate  equal  ten  per  centum  of  the  capital  and  at  least  ten  per 
centum  of  which  must  be  paid  in  cash.  Such  certificate  shall  have 
attached  thereto,  as  a  part  thereof,  the  affidavit  of  at  least  three  of  such 
directors,  to  the  effect  that  ten  per  centum  of  such  capital  stock  has 
been  in  good  faith  subscribed,  and  at  least  ten  per  centum  of  such 
subscription  has  been  paid  in  cash.  No  railroad  corporation  shall  have, 
own  or  hold  any  stock  in  any  such  corporation. 
Amended  by  ch.  483  of  1901.  In  effect  April  23,  1901. 

§  11.  Navigation  between  additional  ports. — Any  such  corpora- 

tion  desiring  or  intending  to  navigate  boats,  ships  or  vessels,  upon  any 
other  waters,  or  in  case  of  ocean  steamers  between  any  other  or  addi- 
tional ports  than  those  named  in  its  original  certificate,  may  from  time 
to  time,  file  a  further  certificate,  in  the  same  manner  as  is  prescribed 
l>y  law  for  the  filing  of  the  original  certificate,  in  which  shall  be  stated 
each  additional  waters  or  ports  upon  or  between  which  such  corporation 
desires  to  navigate  vessels,  and  thereafter  such  corporation  may  navi- 
gate its  vessels  upon  such  waters  and  between  such  ports,  with  the  like 
effect  as  if  they  had  been  named  in  the  original  certificate. 

§  12.  Payment  of  capital  stock. — The  capital  stock  of  such  cor- 
poration shall  be  paid  in,  at  least  one-half  thereof,  within  one  year, 
and  the  remainder  within  two  years  from  its  incorporation,  or  the  cor- 
poration shall  be  dissolved.  Within  thirty  days  after  the  payment  of 
the  last  installment,  a  certificate  stating  that  the  whole  amount  of  such 
capital  stock  has  been' paid  in  shall  be  made,  signed  and  sworn  to  by 
the  president  and  a  majority  of  the  directors  of  the  corporation,  and 
iiled  and  recorded  in  the  offices  where  the  original  certificates  of  incor- 
poration were  filed. 

§  13.  Ferries  unauthorized. — This  article  shall  not  authorize  the 
formation  of  any  ferry  corporation  to  ply  between  the  city  of  New 
York  and  any  other  point. 


TRANSPORTATION  CORPORATIONS  LAW. 
AETICLE  IIL 

STAGE   COACH  CORPORATIONS. 

SECTION  20.  Incorporation. 

21.  Alteration  or  extension  of  route. 

22.  Powers. 

23.  Existing  routes  and  extensions. 

§  20.  Incorporation. — Five,  or  more  persons,  may  become  a  corporation  for 
the  purpose  of  establishing,  maintaining  and  operating  any  stage"  or  omnibus 
route  or  routes  for  the  public  use  iii  the  conveyance  of  persons  and  property  else- 
where than  in  the  city^  of  New  York,  or  any  stage  route  or  routes  already  estab- 
lished for  a  like  public  use,  by  making,  signing,  acknowledging  and  filing  a  cer- 
tificate which  shall  state  the  name  of  the  corporation,  the  number  of  years  it  is  to 
continue,  the  route  or  routes  upon  which  it  is  intended  to  run  as  near  as  practica- 
ble, the  number  of  the  directors  thereof,  not  less  than  three  nor  more  than  five, 
the  names  of  the  directors  for  the  first  year,  the  amount  of  its  capital  stock,  the 
place  of  residence  of  each  subscriber  thereto,  and  the  number  of  shares  of  stock 
he  agrees  to  take  in  such  corporation. 

§  21.  Alteration  or  extension  of  ronte. — The  directors  may,  by  a  vote  of 
two  thirds  of  their  number,  at  any  time  alter  or  extend  the  route  or  routes  desig- 
nated in  the  certificate  of  incorporation,  upon  making,  acknowledging  and  filing  a 
certificate  to  that  effect,  in  the  offices  where  the  original  certificates  of  incorpora- 
tion were  filed. 

'   §  22.  Powers. — In  addition  to  the  powers  conferred  by  the  general  and  stock 
corporation  laws,  every  such  corporation  shall  have  power: 

1.  To  take  and  convey  persons  and  property  in  stages  and  omnibuses,  and  to 
provide  and  run  the  necessary  stages  and  omnibuses  upon  their  route  or  routes  for 
the  public  use  and  to  receive  compensation  therefor. 

2.  To  erect  and  maintain  all  necessary  and  convenient  buildings,  fixtures  and 
machinery  for  the  use  and  accommodation  of  their  passengers  and  business. 

§  23.  Existing  routes  and  extensions. — Any  corporation  incorporated  under 
any  law  of  this  state  heretofore  enacted  which  owns  and  operates  a  lawfully  estab- 
lished stage  route  which  has  been  continuously  operated  by  such  company  or  its 
predecessors  in  title  to  such  route  for  five  years  last  past  in  any  city  of  the  first 
class,  is  hereby  authorized  and  empowered  to  extend  its  existing  routes  at  any  time 
or  times  and  to  operate  the  same  as  extended  with  stages  and  omnibuses  propelled 
by  electricity  or  any  other  motive  power,  in  and  upon  any  streets  and  highways 
of  such  city,  without  further  or  other  authority,  proceeding,  or  consent  required 
under  any  act,  general,  public,  private  or  local;  provided,  however,  that  such  ex- 
tensions shall  not  become  valid  until  they  shall  have  been  first  approved  by  the 
•tate  board  of  railroad  commissioners,  who,  on  giving  their  approval,  shall  make  a 
certificate  of  such  extension  or  extensions  of  route  as  approved,  which  certificate 
shall  be  filed  in  the  office  of  the  secretary  of  state,  and  in  the  office  of  the  clerk 
of  the  county  in  which  such  extension  is  located.  Such  company,  on  filing  in 
said  offices  an  acceptance  of  the  extensions  specified  in  such  certificate  and  on 
operating  such  extensions,  shall  have  the  right  to  charge  a  fare  not  exceeding  ten 
cents  per  passenger  for  a  continuous  ride  over  the  whole  or  any  part  of  the  routes 
owned  or  operated  by  it,  and  shall  pay  a  license  fee  to  the  city  in  which  it  oper- 
ates equal  to  the  charge  now  in  force  for  licensing  similar  stages  and  omnibuses, 
and  shall  also  pay  to  the  comptroller  or  other  chief  fiscal  officer  of  said  city  five 
per  centum  per  annum  of  its  gross  receipts  from  the  operation  of  said  routes. 

[New.]    Added  by  chap.  657  of  1900.     In  effect  April  25,  1900. 

ARTICLE  IV. 

TRAMWAY  CORPORATIONS. 

SECTION  30.  Incorporation. 
31.  Powers. 

82.  Condemnation  of  real  property. 
33.  Crossings. 

§  30.  Incorporation, — Thirteen  or  more  persons  may  become  a 
corporation  for  constructing,  maintaining  and  operating  an  elevated 

4 


TRANSPORTATION  CORPORATIONS  LAW. 

tramway,  constructed  of  poles,  piers,  wires,  rods,  ropes,  bars  or  chains, 
for  the  transportation  of  freight  in  suspended  buckets,  cars  or  other 
receptacle*,  for  hire,  by  making,  signing,  acknowledging  and  filing 
a  certificate  stating  the  name  of  the  corporation,  the  number  of  years 
it  is  to  continue,  the  places  from  and  to  which  such  tramway  ia  to  be 
constructed,  maintained  and  operated,  its  length  as  near  as  may  be, 
the  name  of  each  county  through  or  in  which  it  is  made  or  intended 
to  be  made,  the  amount  of  its  capital  stock  and  the  number  of  shares 
into  which  it  is  to  be  divided,  the  number  of  the  directors  thereof, 
not  less  than  three,  the  names  and  places  of  residence  of  the  directors 
for  the  first  year,  the  place  of  residence  of  each  subscriber  thereto  and 
the  number  of  shares  he  agrees  to  take  in  such  corporation. 

§  31.  Powers.  —  Every  such  corporation,  in  addition  to  the  powers 
conferred  by  the  general  and  stock  corporation  laws,  shall  have  power : 

1.  To  cause  such  examination  and  surveys  for  its  proposed  tram- 
way, to  be  made  as  may  be  necessary  to  the  selection  of  the  most 
advantageous  route,  and  for  such  purpose  by  its  oificers  and  servants, 
to  enter  upon  the  lands  or  waters  of  any  person,  but  subject  to  re- 
sponsibility for  all  damages  done  thereto. 

2.  To  lay  out   its  tramway  and  to  construct  the  same  as  hereby 
provided. 

3.  To  erect  and  maintain  all  necessary  and  convenient  buildings, 
stations,  fixtures  and   machinery  for  the  accommodation  and  trans- 
action of  its  business. 

§  32.  May  acquire  land  by  condemnation. —  In  case  any  such 
corporation  is  unable  to  agree  for  the  purchase,  use  or  lease  of  any 
real  property  required  for  the  purposes  of  its  incorporation,  it  shall 
have  the  right  to  acquire  title  to  the  same  by  condemnation. 

§  33.  Crossings. —  Whenever  any  tramway,  constructed-  by  any 
such  corporation,  shall  cross  a  railroad,  highway,  turnpike,  plank- 
road  or  canal,  such  tramway  shall  be  so  constructed  as  not  to  interfere 
with  the  free  use  of  such  railroad,  highway,  turnpike,  plank-road  or 
canal  for  the  purposes  for  which  they  were  intended. 

ARTICLE  Y. 

PIPE   LINE   CORPORATIONS. 

SBOTION  40.  Incorporation. 

41.  Location  of  line. 

42.  Condemnation  of  real  property. 

43.  Railroad,  turnpike,  plank-road  and  highway  crossings. 

44.  Crossings  of  canals,  rivers  and  creeks. 

45.  Consent  of  local  authorities. 

46.  Construction  through  villages  and  cities. 

5 


TRANSPORTATION  CORPORATIONS  LAW. 

47.  Over  Indian  reservations. 

48.  Over  state  lands. 

49.  Additional  powers. 

50.  Use  of  line  to  be  public ;  storage ;  liable  as  common  carriers ;  rate* 

and  charges. 

51.  Receipts  for  property  ;  cancellation  of  vouchers. 

52.  Monthly  statements. 

53.  Fences,  farm  crossings  and  use  of  line  not  inclosed. 

54.  Taxation  of  property. 

§  40.  Incorporation. —  Twelve  or  mor.e  persons  may  become  a 
corporation  for  constructing  and  operating  for  public  use,  except  in 
the  city  of  New  York,  lines  of  pipe  for  conveying  or  transporting 
therein  petroleum,  gas,  liquids  or  any  products  or  property,  or  for 
maintaining  and  operating  any  line  of  pipe  already  constructed 
and  owned  by  any  corporation,  person  or  persons,  except  in  such  city, 
for  the  public  use,  by  making,  signing,  acknowledging  and  filing  a 
certificate  stating  the  name  of  the  corporation,  the  number  of  years  it 
is  to  continue,  the  places  from  and  to  which  it  is  to  be  constructed  or 
maintained  and  operated,  its  length  as  near  as  may  be,  the  name  of 
each  county  through  or  into  which  it  is  to  be  constructed;  the  amount 
of  its  capital  stock,  which  shall  not  be  less  than  fifteen  hundred  dol- 
lars for  every  mile  of  pipe  constructed  or  proposed  to  be  constructed, 
and  the  number  of  shares  of  which  it  shall  consist ;  the  number  of 
directors  not  less  than  seven,  and  the  names  and  places  of  residence 
of  the  directors  for  the  first  year,  and  the  place  of  residence  of  each  sub- 
ecriber  and  the  number  of  shares  he  agrees  to  take  in  such  corporation, 
which  must  in  the  aggregate  equal  ten  hundred  and  fifty  dollars  for 
every  mile  of  pipe  constructed  or  proposed  to  be  constructed,  and 
twenty-five  per  cent  of  which  must  be  paid  in  cash.  Such  certificate 
shall  have  indorsed  thereon  or  appended  thereto  and  as  a  part  thereof, 
an  affidavit  made  by  at  least  three  of  the  directors  named  therein  that 
at  least  ten  hundred  and  fifty  dollars  of  stock  for  every  mile  of  line 
proposed  to  be  constructed  or  maintained  and  operated  has  been  in 
good  faith  subscribed,  and  twenty-five  per  cent  paid  in  mojiey  thereon, 
and  that  it  is  intended  in  good  faith  to  construct  or  to  maintain  and 
operate  the  line  of  pipe  mentioned  in  such  certificate,  and  that  such 
corporation  was  not  projected  or  formed  with  the  intent  or  for  the  pur 
pose  of  injuring  any  person  or  corporation,  nor  for  the  purpose  of  sell- 
ing or  conveying  its  franchise  to  any  person  or  corporation,  nor  for 
any  fraudulent  purpose. 

§  41.  Location  of  line. —  Every  such  corporation  shall  before  com- 
mencing the  construction  of  its  pipe  line  in  any  county,  or  any 'pro- 
ceeding for  the  condemnation  of  real  property,  plainly  and  distinctly 
mark  and  designate  the  line  adopted  and  located  by  them  by  a  lino 
of  stakes  consecutively  numbered  and  equally  distant,  and  not  more 
than  twenty  rods  from  each  other,  so  that  each  line  can  be  definitely 

6 


TRANSPORTATION  CORPORATIONS  LAW. 

known  and  ascertained  in  all  places,  and  make  a  map  and  survey  of 
the  route  so  located  and  staked  out,  and  shall  indicate  thereon  plainly 
the  points  where  such  route  crosses  each  parcel  of  land  to  which  they 
have  not  acquired  title  by  agreement,  and  shall  cause  such  map  and 
survey  to  be  certified  by  the  president  and  engineer,  and  filed  in  the 
office  of  the  clerk  of  the  county  into  or  through  which  the  line  so  located 
and  mapped  passes,  and  shall  give  to  the  owner  or  occupant,  if  he  is 
known  or  can  be  ascertained,  of  every  parcel  of  land  through  which 
such  route  passes,  the  title  to  which  has  not  been  acquired  by  pur- 
chase, written  notice  of  the  filing  of  such  map  and  survey,  stating  that 
such  route  passes  over  or  across  such  owner's  or  occupant's  lands,  and 
that  the  route  thereof  is  indicated  thereon  by  such  line  of  stakes.  Any 
occupant  or  owner  of  such  lands  feeling  aggrieved  by  the  proposed 
location,  may,  within  fifteen  days  after  the  service  of  such  notice,  give 
ten  days'  written  notice  to  the  corporation,  by  service  upon  the  presi- 
dent, engineer,  ar  any  director  thereof,  and  to  the  owner  or  occupant 
of  any  lands  to  be  affected  by  the  alteration  to  be  proposed  by  him,  of 
the  time  and  place  of  an  application  to  be  made  by  him  to  a  special 
term  of  the  supreme  court  in  the  judicial  district  in  which  the  lands 
are  situated  for  the  appointment  of  commissioners  to  relocate  such  line. 
If  upon  the  hearing  the  court  shall  consider  that  sufficient  cause  exists 
therefor,  it  shall  appoint  three  disinterested  persons  commissioners 
to  examine  the  route  located  and  the  proposed  alteration  thereof,  and 
direct  the  mode  of  proceeding,  who  shall  report  to  the  court  the  facts 
relating  thereto  and  their  opinion  as  to  the  proposed  alteration,  and 
what,  if  any,  alteration  should  be  made  in  such  line,  and  the  court 
shall  thereupon  make  such  order  as  it  shall  deem  proper  in  relation  to 
such  alteration,  and  determine  the  location  of  such  line,  and  fix  and 
adjust  the  costs,  fees  and  charges  of  the  commissioners,  and  the  costs 
and  charges  of  the  proceedings,  and  direct  by  which  party  the  same 
shall  be  paid,  and  may  enforce  payment  thereof  by  proceedings  as  for 
a  contempt  of  court,  for  refusal  to  pay  costs  directed  to  be  paid  by  an 
order  of  the  court,  and  such  order  shall  be  final  as  to  the  location  of 
the  line  upon  the  lands  embraced  therein.  Such  corporation  shall  not 
commence  the  work  of  constructing  or  laying  its  line  of  pipe,  or  insti- 
tute proceedings  for  the  condemnation  of  real  property,  in  any  county, 
until  after  the  expiration  of  fifteen  days  from  the  service  by  it  of  the 
notice  herein  required,  nor  until  all  applications  for  a  relocation  of  its 
line  in  such  county  if  any  are  made,  have  been  finally  determined. 

§  42.  Condemnation  of  real  property. — In  case  such  corporation 
is  unable  to  agree  for  the  purchase  of  any  real  estate  required  for  the 
purposes  of  its  incorporation,  and  its  line  of  pipe  in  the  county  in 
which  such  real  estate  is  situated  has  been  finally  located,  it  shall  have 


TRANSPORTATION  CORPORATIONS  LAW. 

the  right  to  acquire  title  thereto  by  condemnation,  but  such  corpora- 
tion shall  not  locate  or  construct  any  line  of  pipe  through  or  under 
any  building,  dooryard,  lawn,  garden  or  orchard,  except  by  the  con- 
sent of  the  owner  thereof  in  writing  duly  acknowledged,  nor  through 
any  cemetery  or  burial  ground,  nor  within  one  hundred  feet  of  any 
building,  except  where  such  line  is  authorized  by  public  officers  to  be 
laid  across  or  upon  any  public  highway,  or  where  the  same  is  laid 
across  or  upon  any  turnpike  or  plankroad.  No  pipes  shall  be  laid 
for  the  purpose  of  carrying  petroleum,  gas  or  other  products  or  prop- 
erty through  or  under  any  of  the  streets  in  the  cities  of  this  state, 
unless  such  corporation  shall  first  obtain  the  consent  of  a  majority  of 
the  property  owners  on  the  streets  which  may  be  selected  for  the  lay- 
ing of  pipes,  and  such  pipe-line  shall  be  located  with  all  reasonable 
care  and  prudence  so  as  to  avoid  danger  from  the  bursting  of  the  pipes. 

§  43.  Railroad,  turnpike,  plankroad  and  highway  cross- 
ings.— Whenever  any  line  of  pipe  of  any  such  corporation  shall  nec- 
essarily cross  any  railroad,  highway,  turnpike  or  plankroad,  such  line 
or  pipe  shall  be  made  to  cross  under  such  railroad,  highway,  turnpike 
or  plankroad  and  with  the  least  injury  thereto  practicaWe,  and  unless 
the  right  to  cross  the  same  shall  be  acquired  by  agreement,  compensa- 
tion shall  be  ascertained  and  made  to  the  owners  thereof,  or  to  the 
public  in  case  of  highways,  in  the  manner  prescribed  in  the  condem- 
tion  law,  but  no  exclusive  title  or  use  shall  be  so  acquired  as  against 
any  railroad,  turnpike  or  plankroad  corporation,  nor  as  against  the 
rights  of  the  people  of  this  state  in  any  public  highway,  but  the  rights 
acquired  shall  be  a  common  use  of  the  lands  in  such  manner  as  to  be 
of  the  least  practical  injury  to  such  railroad,  turnpike  or  plankroad, 
consistent  with  the  use  thereof  by  such  pipe-line  corporation,  nor  shall 
any  such  corporation  take  or  use  any  lands,  fixtures  or  erections  of  any 
railroad  corporation,  or  have  the  right  to  acquire  by  condemnation  the 
title  or  use,  or  right  to  run  along  or  upon  the  lands  of  any  such  cor- 
poration, except  for  the  purpose  of  directly  crossing  the  same  when 
necessary. 

§  44.  Construction  across  and  along  canals,  rivers  and 
creeks. — No  pipe  line  shall  be  constructed  upon  or  across  any  of  the 
canals  of  this  state,  except  by  the  consent  of  and  in  the  manner  and 
upon  the  terms  prescribed  by  the  superintendent  of  public  works, 
unless  constructed  upon  a  fixed  bridge  across  such  canal,  and  with  the 
consent  of  the  person  for  whose  benefit  such  bridge  is  constructed  and 
maintained,  or  ivpon  such  a  bridge  over  the  canal,  at  the  crossing  of  & 
public  highway,  or  street  with  the  consent  of  the  public  officers  hav- 
ing the  supervision  thereof,  or  of  the  municipal  authorities  of  any 

8 


TRANSPORTATION  CORPORATIONS  LAW. 

village  or  city  within  whose  limits  such  bridge  may  be,  nor  shall  the 
pipes  of  any  such  corporation  be  laid  through  or  along  the  banks  of 
any  of  the  canals  of  this  state,  nor  through  or  under  any  of  its  rivers 
or  creeks,  unless  such  pipes  shall  be  encased  so  as  to  prevent  leakage, 
in  such  manner  as  shall  be  approved  by  the  superintendent  of  public 
works. 

§  45.  Consent  of  local  authorities. — No  pipe  line  shall  be  con- 
structed across,  along  or  upon  any  public  highway  without  the  consent 
of  the  commissioners  of  highways  of  the  town  in  which  such  highway 
is  located,  upon  such  terms  as  may  be  agreed  upon  with  such  commis- 
sioners. If  such  consent  or  the  consent  of  the  commissioners  or 
municipal  authorities  required  by  the  preceding  section  can  not  be 
obtained,  application  may  be  made  to  the  general  term  of  the  supreme 
court  of  the  department  in  which  such  highway  or  bridge  is  situated 
for  an  order  permitting  the  corporation  to  construct  its  line  across, 
along  or  upon  such  highway,  or  across  or  upon  such  bridge.  The 
application  shall  be  by  duly  verified  petition  and  notice  which  shall  be 
terved  upon  the  commissioners  of  highways  of  the  town  in  which  the 
highway  is  situated,  or  the  municipal  authorities  of  t?ie  village  or  city 
where  such  bridge  is  located,  according  to  t>ie  practice  or  order  of  the 
court,  or  an  order  to  show  cause,  and  the  court  upon  the  hearing  of  the 
application  may  grant  an  order  permitting  the  line  to  be  so  constructed 
in  such  manner  and  upon  such  terms  as  it  may  direct. 

§  46.  Construction  through  villages  and  cities. —  No  pipe  line 
uhall  be  constructed  into  or  through  any  incorporated  village  or  city 
in  this  state,  unless  authorized  by  a  resolution  prescribing  the  route, 
'manner  of  construction  and  terms  upon  which  granted,  adopted  at  a 
regular  meeting  of  the  board  of  trustees  of  the  village  or  the  common 
council  of  the  city  by  a  two-thirds  vote  of  such  board  or  council,  but 
such  resolution  shall  not  affect  any  private  right.  No  pavement  shall 
be  removed  in  any  city  under  the  provisions  of  this  article,  unless 
done  under  the  direction  of  the  common  council,  nor  until  such  cor- 
poration shall  give  a  bond  in  such  sum  as  the  common  council  may 
require  for  the  replacing  of  any  pavements  which  shall  have  been 
removed.  In  case  any  pavement  shall  have  been  removed  and  not 
properly  relaid,  the  common  council  may  bring  suit  in  any  court  of 
record,  for  the  cost  of  relaying  such  pavement  against  any  such  cor- 
poration. No  gas-houses  shall  be  erected  in  any  city  tinder  the  pro- 
visions of  this  article,  for  supplying  gas  to  the  inhabitants,  unless 
consent  is  first  given  by  the  corporate  authorities  of  the  city. 

§  47.  Over  Indian  reservations. —  Such  corporation  may  contract 
with  the  chiefs  of  any  nation  of  Indians  over  whose  lands  it  may  be 

9 


TRANSPORTATION  CORPORATIONS  LAW. 

necessary  to  construct  their  pipe  line  for  the  right  to  construct  such 
pipe  line  upon  such  lands,  but  no  such  contract  shall  vest  in  the  cor- 
poration the  fee  of  such  lands,  nor  the  right  to  occupy  the  same  for 
any  purpose  other  than  for  the  construction,  operation  and  mainte- 
nance of  such  pipe  line,  nor  shall  such  contract  be  valid  or  effectual 
until  the  same  has  been  ratified  by  the  county  court  of  the  county  in 
which  the  lands  are  situated. 

§48.  Over  state  lands. —  The  commissioners  of  ihe  land  office 
shall  have  power  to  grant  to  any  pipe  line  corporation  any  lands 
belonging  to  the  people  of  this  state  which  may  be  required  for  tho 
purposes  of  its  incorporation  on  such  terms  as  may  be  agreed  on  by 
them  or  such  corporation  may  acquire  title  thereto  by  condemnation, 
and  if  any  lands  owned  by  any  county,  city  or  town  as  required  by 
such  corporation  for  such  purposes,  the  county,  city  or  town  officers 
having  charge  of  such  lands  may  grant  them  to  such  corporation  upon 
such  terms  and  for  such  compensation  as  may  be  agreed  upon. 

§  49.  Additional  powers.—  Rvery  corporation  formed  under  this 
article  shall  in  addition  to  the  powers  conferred  by  the-  general  and 
stock  corporation  law  h  re  p^war  : 

1.  To  cause  such  examination  and  surveys  of  its  proposed  line  of 
pipe  to  be  made  as  may  be  necessary  to  the  selection  of  the  most 
advantageous  route,  and  for  such  purpose  by  its  officers,  agents  or  ser- 
vants may  enter  upon  the  lands  or  waters  of  any  person,  upon,  through 
or  across  which  such  corporation  can  construct  its  line  of  pipe,  under 
the  provisions  of  this  article,  subject  however  to  liability  for  all  actual 
damage  which  shall  be  done  thereto. 

2.  To  take  and  ho'.d  s  .ch  voluntary  grants  of  real  estate  and  other 
property,  as  shall  be  mad.  to  it  to  aid  in  the  construction,  mainten  > 
ance,  operation  and  ace:  mraodation  of  its  pipe  line. 

3.  To  lay  out  its  pipe  "'--.e  route  not  exceeding  twelve  feet  in  width, 
but  at  the  terminations  of  such  line  and  at  all  receiving  and  discharg- 
ing points  and  at  all  places  where  machinery  may  properly  or  must 
necessarily  be  set  up  for  the  operation  of  such  pipe  line  it  may  tak'i 
jmch  additional  width,  and  for  such  length  as  may  be  necessary. 

4.  To  take  and  convey  through  pipes  any  property,  substance  or 
product  capable  of  transportation  therein  by  any  force,  power  or  me- 
chanical  agency,  and  to  erect  and  maintain  all  necessary  and  con- 
venient buildings,  stations,  fixtures  and  machinery  for  the  purposes 
of  its  incorporation. 

5.  To  regulate  the  time  and  manner  in  which   property  shall   bn 
transported  over  its  pipe  lines,  and  the  compensation  to  be  paid  there- 
for, but  such  compensation  shall  not  exceed  the  sum  or  be  above  th^1 

10 


TRANSPORTATION  CORPORATIONS  LAW. 

rate  of  twenty-five  cents  per  one  hundred  miles  for  the  transportation 
of  forty-two  gallons  of  any  product  transported  on  lines  of  one  hun- 
dred miles  in  length  or  over,  which  shall  be  reckoned  and  adjusted 
upon  the  quantity  or  number  of  gallons  delivered  by  such  corporation 
at  the  point  to  which  it  shall  have  undertaken  to  deliver  the  same. 

§  50.  Use  of  line  to-  be  public ;  storage ;  liable  as  common 
carriers ;  rates  and  charges. — The  pipe  lines  of  every  such  cor- 
poration shall  be  open  for  transportation  to  the  public  use,  and  all 
persons  desiring  to  transport  products  through  such  pipe  line  shall 
have  the  absolute  right  upon  equal  terms  to  such  transportation  in  the 
order  of  application  therefor,  on  complying  with  the  general  require- 
ments of  such  corporation,  as  to  delivery  for  and  payment  of  such 
transportation,  but  no  application  for  such  transportation  shall  be 
valid  beyond  or  for  a  greater  quantity  of  products  than  the  applicant 
shall  then  own  and  have  ready  for  delivery  for  transportation  to 
such  corporation,  and  every  such  corporation  shall  provide  suitable 
and  necessary  receptacles  for  receiving  all  such  products  for  trans- 
portation, and  for  storage  at  the  place  of  delivei-y  until  the  same 
can  reasonably  be  moved  by  the  consignee,  and  shall  be  liable  as 
common  carriers  therefor  from  the  time  the  same  is  delivered  for 
transportation  until  a  reasonable  time  after  the  same  has  been  trans- 
ported to  the  place  of  consignment  and  ready  for  delivery  to  the 
consignee,  which  time  shall  be  fixed  by  general  regulation  by  the 
corporation,  and  shall  not  be  less  than  two  days  from  and  after  the 
same  shall  be  ready  for  delivery  and  notice  thereof  given  to  such 
consignee,  and  all  rates  and  charges  of  every  description,  for  or  on  ac- 
count of  or  in  any  manner  connected  with  the  transportation  of  any 
products,  shall  be  fixed  by  such  corporation  by  general  rules  and  regu- 
lations, which  shall  be  applicable  to  all  parties  who  shall  transport 
any  products  through  such  pipe  line,  or  deliver  or  contract  to  deliver 
products  for  transportation  and  shall  be  written  or  printed  and  ex- 
posed to  public  view  and  at  all  times  open  to  public  examination. 

§  51.  Receipts  for  property ;  cancellation  of  vouchers ;  de- 
livery of  property. — No  receipt,  certificate  or  order  of  any  kind 
shall  be  made,  accepted  or  issued  by  any  pipe  line  corporation  for  any 
commodity  unless  the  commodity  represented  by  them  is  actually  in 
possession  of  the  corporation  at  the  time  of  making,  issuing  or  accept- 
ance thereof.  Whenever  .any  such  corporation  shall  have  parted  with 
the  possession  of  any  commodity  and  received  therefor  any  order, 
voucher,  receipt  or  certificate,  such  order,  voucher,  receipt  or  certifi- 
cate shall  not  be  issued  or  used  again,  but  shall  be  canceled  with 
the  word  "  canceled "  stamped  or  printed  legibly  across  the  face 
thereof,  and  such  canceled  order,  voucher,  receipt  or  certificate  shall 

11 


TRANSPORTATION  CORPORATIONS  LAW. 

be  filed  and  preserved  by  such  corporation  and  a  record  of  the  same 
kept  by  the  secretary  thereof.  No  petroleum  or  other  commodity 
received  for  transportation  by  such  corporation  shall  be  delivered  to 
any  person  without  the  presentation  and  surrender  of  all  vouchers, 
receipts,  orders  or  certificates  that  have  been  issued  or  accepted  for  the 
same. 

§52.  Monthly  statements. —  Every  pipe  line  corporation  shall 
make  monthly  a  specific  statement  showing  the  amount  of  all  com- 
modities received,  the  amount  delivered  during  the  month,  and  the 
stock  on  hand  on  the  last  day  of  each  month  of  the  year,  and  how 
much  of  such  stock  is  represented  by  outstanding  certificates,  vouch- 
ers, receipts  or  orders,  and  how  much  in  credit  balances  on  the  books 
of  the  corporation.  Such  statement  shall  be  made  on  or  before  the 
tenth  day  of  the  succeeding  month  and  verified  by  the  oath  of  the 
president  and  secretary  that  it  is  in  all  respects  true  and  correct,  and 
shall  be  filed  within  three  days  thereafter  in  the  county  clerk's  office 
in  the  county  where  the  principal  office  of  the  corporation  is  located, 
and  a  true  copy  of  the  same  posted  in  a  conspicuous  place  in  its  prin- 
cipal office  for  at  least  thirty  days  thereafter. 

§  53.  Fences ;  farm  crossings  and  use  of  line  not  inclosed. — 

It  shall  not  be  necessary  for  any  such  corporation  to  fence  the  lands 
acquired  by  them  for  the  purposes  of  its  incorporation.  But,  if  not 
enclosed  by  a  substantial  fence,  the  owner  of  the  adjoining  lands  from 
whom  such  lands  were  obtained,  his  heirs  or  assigns,  may  occupy  and 
use  such  lands  in  any  manner  not  injurious  to  the  interests  of  the 
corporation  and  shall  not  be  liable  therefor,  or  for  any  trespass  upon 
any  such  lands  except  for  willful  or  negligent  injuries  to  the  pipes, 
fixtures,  machinery  or  personal  property  of  the  corporation.  If  the 
corporation  shall  keep  such  lands  inclosed  it  shall  construct  and  pro- 
vide all  suitable  and  necessary  crossings  with  gates  for  the  use  and 
convenience  of  any  owners  of  lands  adjoining  the  portion  of  its  lands 
so  inclosed,  and  no  claim  shall  be  made  by  it  against  any  owner  of 
adjoining  lands  to  make  or  contribute  to  the  making  or  maintaining  of 
any  division  fence  between  such  adjoining  lands  and  its  lands,  and  if 
it  shall  neglect  to  keek*  and  maintain  substantial  fences  along  its 
lands  the  owners  of  adjoining  lands  may  construct  and  maintain  all 
farm  or  division  fences,  and  all  line  fences  crossed  by  such  pipe  line 
in  the  same  manner  as  though  it  had  not  acquired  such  lands  for  such 
pipe  line,  and  it  shall  be  liable  for  all  injuries  to  such  fences  caused 
or  done  by  any  of  its  officers  or  agents,  or  any  persons  acting  in  their 
or  its  behalf,  or  by  any  laborer  in  its  or  their  employ  or  in  the  employ 
of  any  of  its  contractors. 

•So  in  the  original. 

12 


TRANSPORTATION  CORPORATIONS  LAW. 

§  54.  Taxation  of  property.—  The  real  estate  and  personal  prop- 
erty belonging  to  any  pipe  line  corporation  in  this  state,  shall  be  as- 
sessed and  taxed  in  the  several  towns,  villages  and  cities  in  the  same 
manner  as  the  real  estate  and  personal  property  of  railroad  corpora- 
tions are  assessed  and  taxed,  and  such  corporation  may  pay  such  taxes 
or  commute  therefor  in  the  same  manner  as  railroad  corporations. 


ARTICLE  VI. 

QA8   AND    ELECTRIC    LIGHT    CORPORATIONS. 

SBCTION  60.  Incorporation. 

61.  Powers. 

62.  Appointment  of  inspectors  of  gas  meters. 

63.  Deputy  inspectors. 

64.  Inspection  of  gas  meters. 

65  Gaa  or  electric  light  must  be  supplied  on  application. 

66.  Deposit  of  money  may  be  required. 

67.  Entry  of  buildings  to  *meters  or  lights. 

68.  Refusal  or  neglect  to  pay  rent. 

69.  No  rent  for  meters  to  be  charged. 

70.  Price  of  gas. 

SECTION  60.  Incorporation. —  Three  or  more  persons  may  become 
a  corporation  for  manufacturing  and  supplying  gas  for  lighting  the 
"streets  and  public  and  private  buildings  of  cities,  villages  and  towns 
in  this  state,  or  for  manufacturing  and  using  electricity  for  pro- 
ducing light,  heat  or  power,  and  in  lighting  streets,  avenues,  public 
parks  and  places,  and  public  and  private  buildings  of  cities,  villages 
and  towns  within  this  state,  or  for  two  or  more  of  such  purposes,  by 
making,  signing,  acknowledging  and  filing  a  certificate  stating  the 
name  of  the  corporation,  its  objects,  the  amount  of  its  capital  stock, 
the  term  of  its  existence  not  to  exceed  fifty  years,  the  number  of 
shares  of  which  the  stock  shall  consist,  the  number  of  directors  not 
less  than  three  nor  more  than  thirteen,  the  names  and  places  of  resi- 
dence of  the  directors  for  the  first  year,  and  the  names  of  the  towns, 
villages,  cities  and  counties  in  which  the  operations  of  the  corporation 
are  to  be  carried  on,  and  thereupon  the  persons  who  shall  have  signed 
the  same,  their  associates  and  successors  shall  be  a  corporation  by 
the  name  stated  in  the  certificate. 

Am'd  by  chap.  575  of  1900.     In  effect  April  23,  1900. 

§  61.   Powers. — Every  such  corporation  shall  have  the  following 
additional  powers : 

1.  If  incorporated  for  the  purpose  of  supplying  gas  for  light,  to  manu- 
facture gas,  and  to  acquire  by  purchase  or  otherwise  natural  gas  and  to 
sell  and  furnish  such  quantities  of  gas  as  may  be  required  in  each  city, 
town  and  village  named  in  its  certificate  of  incorporation,  for  lighting 
the  streets,  and  public  or  private  buildings  or  for  other  purposes;  and 
to  lay  conductors  for  conducting  gas  through  the  streets,  lanes,  al" 
squares  and  highways,  in  each  such  city,  village  and  town,  with  the 
consent  of  the  municipal  authorities  thereof,  and  under  such  reasonable 
regulations  as  they  may  prescribe;  and  such  municipal  authorities  shall 
have  power  to  exempt  any  such  corporation  from  taxation  on  their 

*So  in  original. 

13 


TRANSPORTATION  CORPORATION  LAW. 

personal  property  for  a  period  not  exceeding  three  years  from  the 
frganization  of  the  corporation.  Any  corporation  authorized  under  any 
general  or  special  law  of  this  state  to  manufacture  and  supply  gas  shall 
have  the  like  powers  and  privileges. 

Subd.  1  amended  by  ch.  575  of  1900.     In  effect  April  23,  1900. 

Subd.  1  amended  by  ch.  596  of  1902.     In  effect  April  15,  1902. 

8.  If  incorporated  for  the  purpose  of  using  electricity  for  light,  heat  or  power, 
to  carry  on  the  business  of  lighting  by  electricity  or  using  it  for  heat  or  power  iu 
cities,  towns  and  villages  within  this  state,  and  the  streets,  avenues,  public  parks 
and  places  thereof,  and  public  and  private  buildings  therein;  and  for  the  purposes 
of  such  business  to  generate  and  supply  electricity;  and  to  make,  sell  or  lease  all 
machines,  instruments,  apparatus,  and  other  equipments  the:  3for,  and  to  lay,  erect 
and  constrict  suitable  wires  or  other  conductors,  with  the  necessary  poles,  pipes 
or  other  fixtures  in,  on,  over  and  under  the  streets,  avenues,  public  parks  and 
places  of  such  cities,  towns  or  villages,  for  conducting  and  distributing  electricity, 
with  the  consent  of  the  municipal  authorities  thereof,  and  in  such  manner  and 
under  such  reasonable  regulations,  as  they  may  prescribe. 

3.  Any   two  or  more  corporations  organized  under  this  article  or  under  any. 
general  or  special  law  of  the  state  for  the  purpose  of  carrying  on  any  business 
which  a  corporation  organized  under  this  article  might  carry  on,  may  consolidate 
such  corporations  into  a  single  corporation  by  complying  with  the  provisions  of 
the  business  corporations  law  relating  to  the  consolidation  of  business  corporations. 

4.  Any  corporation  organized  under  this  article  or  under  any  general  or  special 
law  of  this  state  for  the  purpose  of  using  electricity  for  light,  heat  or  power  in 
cities,  other  than  of  the  first  class,  towns  or  villages  within  this  state,  may  have 
and  acquire  the  following  additional  powers,  to  wit:  the  power  of  supplying  steam 
to  consume  rs  from  a  central  station  or  stations  through  pipes  laid  in  the  public 
streets  of  the  ci;ies,  towns  and  villages  within  this  state,  and  for  that  purpose  to 
lay,  construct  and  maintain  suitable  pipes  and  conduits  or  other  fixtures  in,  ou 
and  under  the  streets,  avenues,  public  parks  and  places  of  such  cities,  towns  or 
villages,  with  the  consent  of  the  municipal  authorities  thereof,  and  under  such 
reasonable   regulations   as   they  may  prescribe.     For  the  purpose  of  acquiring 
the  powers  above  specified  any  such  corporation  may  make,  sign,  acknowledge 
and  file  in  in  the  same  manner  as  an  original  or  amended  certificate  of  incorpora- 
tion, a  certificate  stating  that  such  corporation  desires  and  intends  to  exercise  the 
powers   hereinabove   specified.     Upon  the  making,  signing  acknowledging  and 
filing  such  certificate,  such  corporation  shall  have  and  acquire  for  the  purposes 
specified  in  such  certificate  all  the  rights,  privileges  and  powers,  and  be  subject  to 
all  the  restrictions  of  district  steam  corporations,  specified  in  sections  thirteen, 
fourteen  and  fifteen  of  the  business  corporations  law  being  chapter  six  hundred 
and  ninety-one  of  the  laws  of  eighteen  hundred  and  ninety-two. 

Added  by  ch.  565  of  1899. 

§  62.  Inspector  of  gas  meters. — The  governor  shall  nominate 
and  by  and  with  the  consent  of  the  senate  appoint  an  inspector  of 
gas  meters,  who  shall  have  an  office  in  The  City  of  New  York, 
whose  duty  it  shall  be,  when  required,  to  inspect,  examine,  prove 
and  ascertain  the  accuracy  of  any  and  all  gas  meters  used  or  intended 
to  be  used  for  measuring  or  ascertaining  the  quantity  of  illuminating 
or  fuel  gas  furnished  by  any  gas  corporation  in  this  state  including 
a  corporation  engaged  in  supplying  natural  gas  to  consumers,  to  or 
for  the  use  of  any  person  or  persons,  and.  when  found  to  be  or  made 
correct,  to  seal,  stamp  or  mark  all  such  meters,  and  each  of  them, 
with  some  suitable  device,  which  device  shall  be  recorded  in  the 
office  of  the  secretary  of  state.  Such  inspector  shall  hold  his  office 
for  the  term  of  five  years  and  until  the  appointment  of  his  successor, 
but  may  be  removed  by  the  governor  for  sufficient  cause.  He  shall 
receive  an  annual  salary  of  five  thousand  dollars,  to  be  paid  in  the 
first  instance  out  of  the  state  treasury  on  the  warrant  of  the  comp 
troller,  which  shall  be  charged  to  and  paid  into  the  state  treasury  by 

14 


TRANSPORTATION  CORPORATION  LAW. 

the  several  gas  corporations  in  this  state,  in  amounta  proportionate 
to  the  amount  of  the  capital  stock  of  such  corporations  respectively, 
to  be  ascertained  and  assessed  by  the  comptroller  of  the  state.  If 
any  such  corporation  shall  refuse  or  neglect  to  pay  into  the  state 
treasury  the  amount  or  portion  of  such  salary  required  of  them  re- 
spectively, for  the  space  of  thirty  days  after  written  notice  given  it 
by  the  comptroller  to  make  such  payment,  then  the  comptroller  may 
maintain  an  action,  in  his  name  of  office,  against  any  such  delinquent 
corporation  for  its  portion  or  amount  of  such  salary,  with  interest 
thereon  at  the  rate  of  ten  per  centum  per  annum  from  the  time  when 
such  notice  was  given  and  the  costs  of  the  action. 
[Ara'd,  ch.  364  of  1898.] 

§63.  Deputy  inspectors.— The  inspectors  of  gas  meters  "shall 
appoint  four  deputy  inspectors  of  gas  meters  to  reside  in  the  citv  of 
Brooklyn,  Albany,  Buffalo  and  Jamestown,  respectively,  to  hold 
during  his  pleasure,  and  who  shall  in  their  respective  places  of  resi- 
dence discharge  the  same  duties  as  are  required  of  the  inspector. 
Such  deputies  shall  each  receive  an  annual  salary  of  fifteen  hundred 
dollars  to  be  paid  in  the  same  manner  as  the  salary  of  the  inspector. 

[Am'd,  ch  364  of  1898]. 

§  6  i.  Inspection  of  gas  meters. — No  corporation  or  person  shall 
furnish  or  put  in  use  any  gas  meter,  which  shall  not  have  been  iu- 
bpeCutsd,  proved  and  sealed  by  the  inspector,  except  during  such  time 
us  the  office  of  inspector  may  be  vacant,  or  such  inspector  after  request 
made,  shall  refuse  or  neglect  to  prove  and  seal  the  meters  furnished 
for  that  purpose,  and  every  gas-light  corporation  shall  provide  and  keep 
in  and  upon  their  premises  a  suitable  and  proper  apparatus,  to  be  ap- 
proved and  sealed  by  the  inspector  of  meters,  for  testing  and  proving 
the  accuracy  of  the  gas  meters  furnished  for  use  by  it,  and  by  which 
apparatus  every  meter  may  and  shall  be  tested,  on  the  written  request 
of  the  consumer,  to  whom  the  same  shall  be  furnished,  and  in  his  pres- 
ence if  he  desire  it.  If  any  such  meter,  on  being 'so  tested,  shall  be 
found  defective  or  incorrect  to  the  prejudice  or  injury  of  the  consumer, 
the  necessary  removal  inspection,  correction  and  replacing  of  such 
meter  shall  be  without  expense  to  the  consumer,  but  in  all  other  cases 
he  shall  pay  the  reasonable  expenses  of  such  removal,  inspection  and 
replacing;  and  in  case  any  consumer  shall  not  be  satisfied  with  such 
inspection  of  the  meter  furnished  to  him,  and  shall  give  to  the  corpo- 
ration written  notice  to  that  effect,  he  may  have  such  meter  reinspected 
by  the  state  inspector,- if  he  require  it,  upon  the  same  terms  and  con- 
ditions as  herein  provided  for  the  original  inspection  thereof. 

§  65.  Gas  and  electric  light  must  be  supplied  on  applica- 
tion. —  Upon  the  application,  in  writing,  of  the  owner  or  occupant  of 

15 


TRANSPORTATION  CORPORATIONS  LAW. 

any  building  or  premises  within  one  hundred  feet  of  any  main  laid 
down  by  any  gas-light  corporation,  or  the  wires  of  any  electric-light 
corporation,  and  payment  by  him  of  all  money  due  from  him  to  the 
corporation,  the  corporation  shall  supply  gas  or  electric  light  as  may 
be  required  for  lighting  such  building  or  premises,  notwithstanding 
there  be  rent  or  compensation  in  arrear,  for  gas  or  electric  light  sup- 
plied, or  for  meter,  wire,  pipe  or  fittings,  furnished  to  a  former  occu- 
pant thereof,  unless  such  owner  or  occupant  shall  have  undertaken  or 
agreed  with  the  former  occupant  to  pay  or  to  exonerate  him  from  the 
payment  of  such  arrears,  and  shall  refuse  or  neglect  to  pay  the  same ; 
and  if  for  the  space  of  ten  days  after  such  application,  and  the  de- 
posit of  a  reasonable  sum  as  provided  in  the  next  section,  if  required, 
the  corporation  shall  refuse  or  neglect  to  supply  gas  or  electric  light 
as  required,  such  corporation  shall  forfeit  and  pay  to  the  applicant 
the  sum  of  ten  dollars,  and  the  further  sum  of  five  dollars  for  every 
day  thereafter  during  which  such  refusal  or  neglect  shall  continue ; 
provided  that  no  such  corporation  shall  be  required  to  lay  service  pipes 
or  wires  for  the  purpose  of  supplying  gas  or  electric  light  to  any  appli- 
cant where  the  ground  in  which  such  pipe  or  wire  is  required  to  be 
laid  shall  be  frozen,  or  shall  otherwise  present  serious  obstacles  to  lay- 
ing the  same ;  nor  unless  the  applicant,  if  required,  s.hall  deposit  in 
advance  with  the  corporation  a  sum  of  money  sufficient  to  pay  the  cost 
of  his  portion  of  the  pipe  or  wire  required  to  be  laid,  and  the  expense 
of  laying  such  portion. 

§  66.  Deposit  of  money  may  be  required. — Every  gas-light  and 
electric  light  corporation  may  require  every  person  to  which  such  cor- 
poration shall  supply  gas  or  electric  light  for  lighting  any  building, 
room  or  premises  to  deposit  with  such  corporation  a  reasonable  turn  of 
money  according  to  the  number  and  size  of  lights  used  or  required,  or 
proposed  to  be  used  for  two  calendar  months,  by  such  person,  and  the 
quantity  of  gas  and  electric  light  necessary  to  supply  the  same  as 
security  for  the  payment  of  the  gas  and  electric  light  rent  or  compen- 
sation for  gas  consumed,  or  rent  of  pipe  or  wire  and  fixtures,  to  become 
due  to  the  corporation,  but  every  corporation  shall  allow  and  pay  to 
every  such  depositor  legal  interest  on  the  sum  deposited  for  the  time 
his  deposit  shall  remain  with  the  corporation. 

§  67.  Buildings  may  be  entered  for  the  examination  of 
meters,  lights,  and-so-forth. — Any  officer  or  other  agent  of  any 
gas-light  or  electric  light  corporation,  for  that  purpose  duly  appointed 
and  authorized  by  the  corporation,  may,  at  all  reasonable  times,  upon 
exhibiting  a  written  authority,  signed  by  the  president  and  secretary 
of  the  corporation,  enter  any  dwelling,  store,  building,  room  or  place 
lighted  with  gas  or  electric  light  supplied  by  such  corporation,  for  the 

16 


TRANSPORTATION  CORPORATIONS  LAW. 

purpose  of  inspecting  and  examining  the  meters,  pipes,  fittings,  wires 
and  works  for  supplying  or  regulating  the  supply  of  gas  or  electric 
light  and  of  ascertaining  the  quantity  of  gas  or  electric  light  consumed 
or  supplied,  and  if  any  person  shall,  at  any  time,  directly  or  indirectly, 
prevent  or  hinder  any  such  officer  or  agent  from  so  entering  any  such 
premises,  or  from  making  such  inspection  or  examination  at  any 
reasonable  time,  he  shall,  for  every  such  offense,  forfeit  to  the  corpora- 
tion twenty-five  dollars. 

§  68.  Refusal  or  neglect  to  pay  rent.— If  any  person  supplied 
with  gas  or  electric  light  by  any  such  corporation  shall  neglect  or  re- 
fuse to  pay  the  rent  or  remuneration  due  for  the  same  or  for  the 
wires,  pipes  or  fittings  let  by  the  corporation,  for  supplying  or  using 
sach  gas  or  electric  light  or  for  ascertaining  the  quantity  consumed  or 
u  >ed  as  required  by  his  contract  with  the  corporation,  or  shall  refuse 
or  neglect,  after  being  required  so  to  do,  to  make  the  deposit  required, 
sii«;h  corporation  may  prevent  thg  gas  or  electric  light  from  entering 
th*»  premises  of  such  person  ;  and  their  officers,  agents  or  workmen 
may  enter  into  or  upon  any  such  premises  between  the  hours  of  eight 
o'clock  in  the  forenoon  and  six  o'clock  in  the  afternoon,  and  separate 
and  carry  away  any  meter,  pipe,  fittings,  wires  or  other  property  of 
the  corporation,  and  may  disconnect  any  meter,  pipe,  fittings,  wires  or 
other  works  whether  the  property  of  the  corporation  or  not,  from  th« 
mains,  pipes  or  wires  of  the  corporation. 

§  69.  No  rent  for  meters  to  be  charged.  —  No  gas-light  corpora- 
tion in  this  state,  shall  charge  or  collect  rent  on  its  gas  meters,  either 
in  a  direct  or  indirect  manner,  and  any  person,  party  or  corporation 
violating  this  provision  shall  be  liable  to  a  penalty  of  fifty  dollars  for 
each  offense,  to  be  sued  for  and  recovered  ia  the  corporate  name  of  the 
city  or  village  where  the  violation  occurs,  in  any  court  having  juris- 
diction, and  when  collected  to  be  paid  into  the  treasury  of  such  city 
or  village  and  to  constitute  a  part  of  the  contingent  or  general  fund 
thereof. 

§  70.  Price  of  gas. —  In  any  city  in  this  state  having  a  population 
of  eight  hundred  thousand  or  over,  no  corporation  or  person  shall  charge 
for  illuminating  gas  a  sum  to  exceed  one  dollar  and  twenty-five  cents 
per  thousand  feet,  and  such  gas  shall  have  an  illuminating  power  of  not 
less  than  twenty  sperm  candles,  of  six  to  the  pound,  and  burning  at 
the  rate  of  one  hundred  and  twenty  grains  of  spermaceti  per  hour, 
tested  at  a  distance  of  not  less  than  one  mile  from  the  place  of  manu- 
facture, by  a  burner  consuming  five  cubic  feet  of  gas  per  hour,  and 
shall  comply  with  the  standard  of  purity  now  or  hereafter  established 
by  law ;  but  in  any  district  or  ward  of  any  city  containing  over  one 

17 


TRANSPORTATION  CORPORATIONS  LAW. 

million  inhabitants,  which  district  or  ward  is  separated  from  the  main 
portion  thereof  by  a  stream  or  other  natural  boundary,  any  gas-light 
corporation  may  charge  a  price  not  to  exceed  one  dollar  and  sixty 
cents  per  thousand  cubic  feet,  but  such  corporation  shall  not  charge  a 
greater  price  in  the  city  where  its  main  works  shall  be  situated  than 
in  such  district  or  ward. 

ARTICLE  VII. 

WATER-WORKS   CORPORATIONS. 

SECTION  80.  Incorporation. 

81.  Must   supply  water ;   village   trustees   may   contract   for  same  ;  tay 

therefor. 

82.  Powers. 

83.  Survey  and  map. 

84.  Condemnation  of  real  property. 

85.  Corporation    may  contract  with  other  towns  or  villages  ;   amended 

certificate. 

§  80.  Incorporation. — Seven  or  more  persons  may  become  a  cor- 
poration for  the  purpose  of  supplying  water  to  any  of  the  cities, 
towns  or  villages  and  the  inhabitants  thereof,  in  this  state,  by  exe- 
cuting, acknowledging  and  filing  a  certificate  stating  the  name  of 
the  corporation,  the  amount  of  its  capital  stock,  the  number  of  shares 
into  which  it  is  to  be  divided,  the  location  of  its  principal  office,  the 
number  of  its  directors  not  less  than  seven,  the  names  and  places  oi 
residence  of  the  directors  for  the  first  year,  the  name  of  the  cities, 
towns  and  villages  which  it  is  proposed  to  supply  with  water  ;  that 
the  permit  of  the  authorities  of  such  cities,  towns  and  villages  herein 
required  has  been  granted  ;  the  post-office  address  of  each  subscriber 
and  the  number  of  shares  he  agrees  to  take  in  such  corporation,  the 
aggregate  of  which  shall  be  at  least  one  tenth  of  the  capital  stock, 
and  ten  per  centum  of  which  shall  be  paid  in  cash  to  the  directors.  At 
the  time  of  filing  there  shall  be  annexed  to  the  certificate  and  as  a  part 
thereof,  a  permit,  signed  and  acknowledged  by  a  majority  of  the  board 
of  trustees  of  the  village,  in  case  an  incorporated  village  is  to  be  sup- 
plied with  water,  and  in  case  a  town,  or  any  part  thereof,  not  within 
an  incorporated  village,  is  to  be  so  supplied,  by  the  supervisor,  justice 
of  the  peace,  town  clerk  and  highway  commissioners  thereof,  or  a 
majority  of  them,  and  in  case  a  city  is  to  be  supplied  with  water, 
by  the  board  of  water  commissioners  of  said  city,  or  by  such  other 
board  or  set  of  officials  as  perform  the  duties  of  water  commissioners 
and  have  charge  of  the  water  supply  for  saH  city,  authorizing  the 
formation  of  such  corporation  for  the  purpose  of  supplying  such 
city,  village  or  town  with  water,  and  an  affidavit  of  at  least  three  of 
the  directors  that  the  amount  of  capital  stock  herein  required  has 
been  subscribed  and  paid  in  cash. 

This  section  was  amended  by  chap.  617  of  1892. 

§  81.  Must  supply  water  ;  contracts  with  municipalities. — Every  such  cor- 
poration shall  supply  the  authorities  or  any  of  the  inhabitants  of  any  city, 
town  or  village  through  which  the  conduits  or  mains  of  such  corporation  may 
pass,  or  wherein  such  corporations  may  have  organized,  with  pure  and  whole- 

18 


TRANSPORTATION  CORPORATION  LAW. 

some  water  at  reasonable  rates  and  cost,  and  the  board  of  trustees  of  any  in- 
corporated  village  and  the  water  commissioners  or  other  board  or  officials  per- 
forming the  duties  of  water  commissioners,  and  having  charge  of  the  water 
supplies  of  any  city  of  this  state,  shall  have  the  power  to  contract  in  the  name 
and  behalf  of  the  municipal  corporation  of  which  they  are  officers,  for  the 
term  of  one  year  or  more  for  the  delivery  by  such  company  to  the  village  or 
city,  of  water  through  hydrants  or  otherwise,  for  the  extinguishment  of  firus 
and  for  sanitary  and  other  public  purposes  ;  and  the  amount  of  such  contract 
agreed  to  be  paid  shall  be  nnually  raised  as  a  part  of  the  expenses  of  such 
village  or  city,  and  shall  be  levied,  assess.  •<  I  and  collected  in  the  same  manner  as 
other  expenses  of  the  village  or  city  are  raise'd.and  when  collected  shall  be  kept 
separate  from  other  funds  of  the  village  or  citj ,  and  be  paid  over  to  such  corpo- 
ration by  such  trustees  or  city  officials,  according  to  the  terms  and  conditions 
of  any  such  contract ;  and  any  such  contract  entered  into  by  the  board  of 
trustees  of  any  village,  or  by  water  commissioners  or  other  board  performing 
the  duties  of  water  commissioners  and  having  charge  of  the  water  supply  of 
any  city,  shall  be  valid  and  binding  upon  such  village  or  city,  but  no  such 
contract  shall  be  made  for  a  longer  period  than  ten  years  nor  for  a  sum  ex- 
ceeding in  the  aggregate,  two  and  one-half  mills  for  every  dollar  of  the  taxable 
property  of  such  village  or  city,  per  annum,  except  upon  a  petition  of  a  ma- 
jority of  the  taxable  inhabitants  of  any  such  village  or  city,  or  portion  then •«  if, 
which  it  is  proposed  to  supply  with  pure  and  wholesome  water,  unless  a  res- 
olution authorizing  the  same  has  been  submitted  to  a  vote  of  the  electors  of 
the  village  or  city,  in  the  manner  provided  by  the  village  law  or  city  char- 
ter, and  approved  by  a  majority  of  the  voters  entitled  to  vote  and  voting  on 
such  question  at  any  annual  election  or  special  election  duly  called  ;  and  any 
board  of  trustees  or  board  of  water  commissioners  or  other  city  ofiicia!s,whea 
so  authorized,  may  make  such  contract  for  a  term  not  exceeding  thirty  years, 
and  tlie  amount  of  such  contract  shall  be  paid  in  semi-annual  installments. 
The  town  board  of  any  town  may  establish  a  water  supply  district  in  such 
town  outside  of  a  city  or  incorporated  village  therein,  by  filing  a  certificate 
describing  the  bounds  thereof,  in  the  office  of  the  town  clerk  ;  an.i  may  con- 
tract in  the  name  of  the  town  for,  the  delivery,  by  a  corporation,  subject  to 
the  provisions  of  this  article,  of  a  supply  of  water  for  fire,  sanitary  or  other 
public  purposes,  to  such  districts,  and  the  whole  town  shall  be  bound  by  such 
contract,  but  the  rental  or  expense  thereof  shall  annually,  in  the  same  man- 
ner as  other  expenses  of  the  town  are  raised,  be  assessed,  levied  upon  and  col- 
lected only  from  the  taxable  property  within  such  water  supply  district.  Such 
money,  when  collected,  shall  be  kept  as  a  separWe  fund  and  be  paid  over  to 
such  corporation  by  the  supervisor  of  the  town,  according  to  the  terms  and 
conditions  of  any  such  contract.  No  such  contract  shall  be  made  for  a 
Ion--  r  period  than  five  years,  nor  for  an  annual  expense  exceeding  three 
mills  upon  each  dollar  of  the  taxable  property  within  such  water  supply  dis- 
trict. 
Anvd  by  ch.  678  of  1896.  In  effect  May  15,  1896. 

§  82.    Powers. — Every  such  corporation  shall  have  the  following 
additional  powers : 

1.  To    lay    and    maintain    their    pipes    and    hydrants    for    delivering    and 
distributing    water    in    any    street,    highway    or    public    place    of    any    city, 
town   or   village    in   which   it   has   obtained   tne   permit   required   by   section 
eighty  of  this  article. 

2.  To  lay  their  water  pipes  in  any  streets  or  avenues  or  public  places  of  an 
adjoining  city,  town  or  village,  to  the  city,  town  or  village  where  such  permit 
has  been  obtained,  provided  that   such  right  in  an  adjoining  city  or  village 
having  a  population  of  more  than  twelev  thousand  inhabitants,  shall  be  subject 
to  the  permission  of  the  local  authorities  thereof  and  upon  such  conditions  as 
they  may  prescribe. 

Am'd  by  ch.  210  of   1905.     In  effect  April   11,  1905. 
Subdiv.  2  arn'd  by  ch.  455  of   1906. 

3.  To  cause  such  examinations  and  surveys  for  its  proposed  water- 
works to  be  made  as  may  be  necessary  to  determine  the  proper  location 
thereof,  and  for  such  purpose  by  its  officers,  agents  or  servants,  to  enter 
upon  any  lands  or  waters  in  the  city,  town  or  village  where  organized, 
or  in  any  adjoining  city,  town  or  village  for  the  purpose  of  making 
such  examinations  or  surveys,  subject  to  liability  for  all  damages  done, 
v  Am'd  by  chap.  617,  of  1892. 

F  §  83.  Survey  and  map.-— Before  entering  upon,  taking  or  using 
any  land,  for  the  purposes  of  its  incorporation  such  corporation  shall 
cause  a  survey  and  map  to  be  made  of  the  lands  intended  to  be  taken 

19 


TRANSPORTATION  CORPORATIONS  LAW. 

or  entered  upon,  by  and  on  which  the  land  of  each  owner  or  occupant 
shall  be  designated,  which  map  shall  be  signed  by  the  president  and 
secretary,  and  iiled  in  office  of  the  county  clerk  of  the  county  in  which 
such  lands  are  situated. 

§  84.  Condemnation  of  real  property. — Any  corporation  organ- 
ized under  this  article,  shall  have  the  right  to  acquire  real  estate,  or 
any  interest  therein  necessary  for  the  purposes  of  its  incorporation, 
and  the  right  to  lay,  relay,  repair  and  maintain  conduits  and  water 
pipes  with  connections  and  fixtures,  in,  through  or  over  the  lands  of 
others ;  the  right  to  intercept  and  divert  the  flow  of  waters 
from  the  lands  of  riparian  owners,  and  from  persons  owning  or  in- 
terested in  any  waters,  and  the  right  to  prevent  the  flow  of  drain- 
age of  noxious  or  impure  matters  from  the  lands  of  others  into  its 
reservoirs  or  sources  of  supply.  If  any  such  corporation,  which  has 
made  a  contract  with  any  city,  town  or  village  or  with  any  of  the 
inhabitants  thereof  for  the  supply  of  pure  and  wholesome  water  as 
authorized  by  section  eighty-one  of  this  article,  shall  be  unable  to 
agree  upon  the  terms  of  purchase  of  any  such  property  or  rights,  it 
may  acquire  the  same  by  condemnation.  But  no  such  corporation 
shall  have  power  to  take  or  use  wrater  from  any  of  the  canals  of  this 
state,  or  any  canal  reservoirs  as  feeders,  or  any  streams  which  have 
been  taken  by  the  state  for  the  purpose  of  supplying  the  canals  with 
water. 

Am'd  by  chap.  230  of  1894.     Took  effect  March  31,  1894. 

§  85.  Corporation  may  contract  with  other  cities,  towns  or 
villages;  amended  certificate. —  When  any  such  corporation  has 
entered  into  a  contract  with  the  authorities  of  any  city,  town  or 
village  not  mentioned  in  its  certificate  of  incorporation,  but  situ- 
ated in  the  same  county  as  the  city,  towns  or  villages  mentioned 
therein  or  an  adjoining  county,  to  supply  it  with  pure  and  whole- 
some water,  it  may  tile  an  amended  certificate,  stating  the  name  of 
such  other  city,  town  or  village  to  be  so  supplied  with  water,  and  it 
may  thereupon  supply  any  such  city,  town  or  village  with  water  in 
the  same  manner  and  with  "the  eame  rights  and  subject  to  the  same 
requirements  as  if  it  had  been  named  in  the  original  certificate  of 
incorporation. 

This  section  was  amended  by  chap.  617  of  1892. 

ARTICLE  VIII. 

TELEGRAPH  AND  TELEPHONE  CORPORATIONS. 

SBOTION  100.  Incorporation. 

101.  Extension  of  lines. 

102.  Construction  of  lines.* 

103.  Transmission  of  despatches.. 

104.  Consolidation  of  corporations. 

105.  Special  policemen. 

§  100.  Incorporation.  —  Seven  or  more  persons  may  become  a  cor- 
poration for  the  purpose  of  constructing,  owning,  using  and  maintaining 

20 


TRANSPORTATION  CORPORATIONS  LAW. 

a  line  or  lines  of  electric  telegraph  or  telephone,  wholly  within  or  parth 
beyond  the  limits  of  this  state,  or  for  the  purpose  of  owning  any  in 
terest  in  any  such  line  or  lines,  or  any  grants  therefor  by  executiug, 
acknowledging  and  filing  a  certificate,  stating  the  name  of  the  cor- 
poration ;  its  general  route  and  the  points  to  be  connected;  its  capitul 
stock;  the  number  of  shares  into  which  it  is  to  be  divided;  the  ter .:, 
of  its  existence  ;  the  number  of  its  directors  not  less  than  seven  ;  th-i 
names  and  residence  of  the  directors  for  the  first  year,  and  the  post- 
office  address  of  the  subscribers  and  the  number  of  shares  which  each 
agrees  to  take  in  such  corporation. 

§  101.  Extension  of  lines. — Any  such  corporation  may  construct, 
own,  use  and  maintain  any  line  of  electric  telegraph  or  telephone,  not 
described  in  its  original  certificate  of  incorporation,  whether  wholly 
within  or  wholly  or  partly  beyond  the  limits  of  this  state,  and  may 
join  with  any  other  corporation  in  constructing,  leasing,  owning,  using 
and  maintaining  such  line,  or  hold  or  own  any  interest  therein,  or 
become  lessees  thereof,  upon  filing  in  the  same  manner  as  the  original 
certificate  is  required  to  be  filed  an  amended  certificate,  executed  and 
acknowledged  by  at  least  two-thirds  of  the  directors  of  such  corpora- 
tion, describing  the  general  route  of  such  line  or  lines,  and  designating 
the  extreme  points  connected  thereby,  and  upon  procuring  the  written 
consent  of  the  persons  owning  at  least  two-thirds  of  the  capital  stock 
of  such  corporation,  and  such  amended  certificate  shall  not  be  filed  until 
there  is  indorsed  thereon  or  annexed  thereto  an  affidavit  made  by  at 
least  three  of  the  directors  of  the  corporation  that  such  consent  has 
been  obtained,  which  affidavit  shall  be  filed  with  and  be  a  part  of 
such  certificate. 

§102.  Construction  of  lines. —  Such  corporation  may  erect,  con- 
struct and  maintain  the  necessary  fixtures  for  its  lines  upon,  over  or 
under  any  of  the  public  roads,  streets  and  highways ;  and  through, 
across  or  under  any  of  the  waters  within  the  limits  of  this  state,  and 
upon,  through  or  over  any  other  land,  subject  to  the  right  of  the 
owners  thereof  to  full  compensation  for  the  same.  If  any  such  cor- 
poration can  not  agree  with  such  owner  or  owners  upon  the  compen-t 
sation  to  be  paid  therefor,  such  compensation  shall  be  ascertained  in 
the  manner  provided  in  the  condemnation  law. 

§  103.  Transmission  of  despatches. —  Every  such  corporation 
shall  receive  despatches  from  and  for  other  telegraph  or  telephone 
lines  or  corporation,  and  from  and  for  any  individual,  and  on  pay- 
ment of  the  usual  charges  by  individuals  for  transmitting  despatches 
as  established  by  the  rules  and  regulations  of  such  corporation,  trans- 
mit the  same  with  impartiality  and  good  faith  and  in  the  order  in 

21 


TRANSPORTATION  CORPORATIONS  LAW. 

which  they  are  received,  and  if  it  neglects  or  refuses  so  to  do,  it  shall 
pay  one  hundred  dollars  for  every  such  refusal  or  neglect  to  the  per- 
son or  persons  sending  or  desiring  to  send  any  such  despatch  and 
entitled  to  have  the  sime  so  transmitted,  but  arrangements  may  be 
made  with  the  proprietors  or  publishers  of  newspapers  for  the  trans- 
mission for  publication  of  intelligence  of  general  arid  public  interest 
out  of  its  regular  order. 

§  104.  Consolidation  of  corporations. — Any  corporation  organ- 
ized under  this  article  may  lease,  sell  or  convey  its  property,  rights, 
privileges  and  franchises,  or  any  interest  therein,  or  any  part  thereof  to 
any  telegraph  or  telepone  corporation  organized  under  or  created  by 
the  laws  of  this  or  any  other  state,  and  may  acquire  by  purchase,  lease 
or  conveyance  the  property  rights,  privileges  and  franchises,  or  any 
interest  therein  or  part  thereof  of  any  such  corporation,  and  may  make 
payments  therefor  in  its  own  stock,  money  or  property,  or  receive  pay- 
ment therefor  in  the  stock,  money  or  property  of  the  corporation 
to  which  the  same  may  be  eo  sold,  leased  or  conveyed,  but  no  such 
lease,  sale,  purchase  or  conveyance  shall  be  valid  until  it  shall  have 
been  ratified  and  approved  by  a  three-fifths  vote  of  its  board  of  direct- 
ors or  trustees,  and  by  the  vote  or  written  consent  of  stocholders 
owning  at  least  three-fifths  of  the  capital  stock  given  at  a  meeting  of 
all  the  stockholders  duly  called  for  that  purpose. 

» 

§  105.  Special  policemen. — The  police  department  or  board  of 
police  of  any  city  may,  in  addition  to  the  police  force  now  authorized 
by  law,  appoint  a  number  of  persons,  not  exceeding  two  hundred,  who 
may  be  designated  by  any  corporation  operating  a  system  of  signaling 
by  telegraph  to  a  central  office  for  police  assistance,  to  act  as  special 
patrolmen  in  connection  with  such  telegraphic  system.  And  the  per- 
son so  appointed  shall,  in  and  about  such  service,  have  all  the  powers 
possessed  by  the  members  of  the  regular  force,  except  as  may  be 
limited  by  and  subject  to  the  supervision  and  control  of  the  police 
department  or  board  of  police  of  such  city.  No  person  shall  be  ap- 
pointed such  special  policeman  who  does  not  possess  the  qualifications 
required  by  such  police  department  or  board  of  police  for  such  special 
service  ;  and  persons  so  appointed  shall  be  subject,  in  case  of  emer- 
gency, to  do  duty  as  part  of  the  regular  police  force  of  the  city.  The 
police  department  or  board  of  police  shall  have  power  to  revoke 
any  such  appointment  at  any  time,  and  every  person  appointed  shall 
wear  a  badge  and  uniform,  to  be  furnished  by  such  corporation  and 
approved  by  the  police  department  or  board  of  police,  such  uniform 
shall  be  designated  at  the  time  of  the  first  appointment  and  shall  be 
ttie  permanent  uniform  to  be  worn  by  such  special  police,  and  the 

22 


TRANSPORTATION  CORPORATIONS  LAW. 

pay  of  such  special  patrolmen  and  all  expenses  connected  with  their 
service  shall  be  wholly  paid  by  such  corporation,  and  no  expense  or 
liability  shall  at  anytime  be  incurred  or  paid  by  the  police  depart- 
ment or  board  of  police  of  any  city,  for  or  by  reason  of  the  services  of 
such  persons  so  appointed. 


ARTICLE  IX. 

TURNPIKE,  PLANKROAD    AND    BRIDGE   CORPORATIONS. 

SECTION  120.  Incorporation. 

121.  Restriction  upon  location  of  road. 

122.  Agreement  for  use  of  highway. 

123.  Application  to  board  of  supervisors. 

124.  Commissioners  to  lay  out  road. 

125.  Possession  of  and  title  to  real  estate. 

126.  Use  of  turnpike  road  by  plankroad. 

127.  Width  and  construction  of  road. 

128.  Construction  of  bridges. 

129.  Certificate  of  completion  of  road  or  bridge.  / 
13 )    Toll  -gates  and  rates  of  toll,  and  exemptions. 

131    Toll  gatherers. 

132.  Penalty  for  running  a  gate. 

133.  Location  of  gates  and  change  thereof. 

134.  Inspectors,  their  powers  and  duties. 

135.  Change  of  route,  extensions  and  branches. 

136.  Milestones,  guide-posts  and  hoist-gates. 

137.  Location  of  office  of  corporation. 

138.  Consolidation  of  corporations,  sale  of  franchise. 

139.  Surrender  of  road. 

140.  Taxation  and  exemption. 

141.  Hauling  logs  and  timber. 

142.  Encroachment  of  fences. 

143.  Penalty  for  fast  driving  over  bridges. 

144.  Acts  of  directors  prohibited. 

145.  Actions  for  penalties. 

146.  Proof  of  incorporation. 

147.  When  stockholders,  to  be  directors. 

148.  Dissolution  of  corporation,  road  to  be  a  highway. 

149.  Town  must  pay  for  lands  not  originally  a  highway. 

150.  Highway  labor  upon  line  of  plankroad  or  turnpike. 

151.  Extension  of  corporate  existence. 

§  120.  Incorporation. — Five  or  more  persons  may  become  a 
corporation  for  the  purpose  of  constructing,  maintaining  and  owning 
a  turnpike,  plankroad  or  a  bridge,  or  causeway  across  any  stream  or 
channel  of  water,  or  adjoining  bay,  swamp,  marsh,  or  water  to  form  in 
connection  with  such  bridge  or  causeway  a  continuous  roadway  across 
the  same,  by  signing,  acknowledging  and  filing  a  certificate  containing 
the  name  of  ihe  corporation,  its  duration,  not  exceeding  fifty  years, 
the  amount  and  number  of  shares  of  its  capital  stock,  the  number  of 
its  directors,  and  their  names  and  post-office  address  for  the  first  year, 
the  termini  of  the  proposed  road,  its  length,  and  each  town,  city  or 
village  into  or  through  which  it  is  to  pass,  or  of  a  bridge,  the  location 
and  plan  thereof,  and  the  post-office  address  of  each  subscriber,  and 

23 


TRANSPORTATION  CORPORATIONS  LAW. 

the  number  of  shares  of  stock  which  he  agrees  to  take,  the  aggregate 
of  which  subscriptions  shall  not  be  less  than  five  hundred  dollars  for 
every  mile  of  road,  or  if  a  bridge  corporation  not  less  than  one-fourth 
of  the  amount  of  the  capital  stock,  and  five  per  cent  of  which  must  be 
actually  paid  in  cash.  There  shall  be  indorsed  on  and  annexed  to  the 
certificate  and  made  a  part  thereof  the  affidavit  of  at  least  three  of  the 
directors  named  therein,  that  the  required  amount  of  capital  stock  has 
been  subscribed  and  the  prescribed  percentage  paid  in  cash. 

§  121.  Restrictions  upon  location  of  road. —  No  such  road  shall 
be  laid  out  through  any  orchard  of  the  growth  of  four  years  or  more 
to  the  in  jury- or  destruction  of  fruit  trees,  or  through  any  garden  cul- 
tivated for  four  years  or  more  before  the  laying  out  of  the  road,  or 
through  any  dwelling-house  or  building  connected  therewith,  or  any 
yards  or  inclosures  necessary  for  its  use  or  enjoyment  without  the 
consent  of  the  owner  thereof,  nor  shall  any  such  corporation  bridge 
any  stream  in  any  manner  that  will  prevent  or  endanger  the  passage 
of  any  raft  of  twenty-five  feet  in  width,  or  where  the  same  is  navigable 
by  vessels  or  steamboats. 

§  122.  Agreement  for  use  of  highways. —  The  supervisor  and 
commissioner  of  highways,  or  a  majority  if  there  be  more  than  one  of 
any  town,  may  agree  in  writing  with  any  such  corporation  for  the  use 
of  any  part  of  a  public  highway  therein  required  for  the  construction 
of  any  such  road,  and  the  compensation  to  be  paid  by  the  corporation 
for  taking  and  using  such  highway  for  such  purpose  on  first  obtaining 
consent  of  at  least  two-thirds  of  all  the  owners  of  land  bounded  on  or 
along  such  highway,  which  agreement  shall  be  filed  and  recorded  in 
the  town  clerk's  office  of  the  town.  If  such  agreement  can  not  be 
made  the  corporation  may  acquire  the  right  to  take  such  highway  for 
such  purpose  by  condemnation.  The  compensation  therefor  shall  be 
paid  to  the  commissioners  of  highways,  to  be  expended  by  them  in 
improving  the  highways  of  the  town. 

§  123.  Application  to  board  of  supervisors. —  If  the  lands 
necessary  for  the  construction  of  the  road  or  bridge  of  any  such  cor^ 
poration  in  any  county  have  not  been  procured  by  gift  or  purchase, 
and  the  right  to  take  and  use  any  part  of  any  highway  therein 
required  by  such  corporation  shall  not  have  been  procured  by  agree- 
ment with  the  supervisor  and  commissioners  of  highways  of  the  town 
in  which  such  highway  is  situated,  the  corporation  may  make  applica- 
tion to  the  board  of  supervisors  or  each  county  in  which  such  bridge 
or  road,  or  any  part  thereof,  is  to  be  located,  for  authority  to  build, 
lay  out  and  construct  the  same,  and  take  the  necessary  real  estate  for 
such  purpose.  Notice  of  the  application  shall  be  published  in  at  least 

24 


TRANSPORTATION  CORPORATIONS  LAW. 

one  public  newspaper  in  each  county  for  six  successive  weeks,  specify- 
ing the  time  and  place  where  it  will  be  made,  the  location,  length  and 
breadth  of  any  such  bridge,  and  the  length  and  route  of  any  such  pro- 
posed road,  its  character,  and  each  town,  city  and  village  in  or  through 
which  it  is  to  be  constructed.  The  application  may  be  made  at  any 
annual  or  special  meeting  of  the  board,  and  if  the  corporation  desires  a 
special  meeting  therefor  any  three  members  of  the  board  may  fix  a  time 
when  the  same  shall  be  held,  and  notice  thereof  shall  be  served  upon 
each  of  the  other  supervisors  by  delivering  the  same  to  him  personally 
or  leaving  it,  at  his  place  of  residence  at  least  twenty  days  before  the 
minutes*  and  the  expenses  of  the  special  meeting  and  of  notifying  the 
members  of  the  board  thereof  shall  be  paid  by  the  corporation.  All 
persons  interested  therein  or  owning  real  estate  in  any  of  the  towns 
through  which  it  is  proposed  to  construct  the  road  may  appear  and 
be  heard  upon  the  hearing  of  the  application.  The  board  may  take 
testimony  in  respect  thereto,  or  authorize  it  to  be  taken  by  a  committee 
of  the  board  and  may  adjourn  the  hearing  from  time  to  time.  After 
hearing  the  application  the  board  may,  by  an  order  entered  in  its 
minutes,  authorize  the  corporation  to  construct  such  bridge  or  road 
and  to  take  the  real  estate  necessary  for  that  purpose,  and  a  copy  of 
the  order  certified  by  the  clerk  of  the  board  shall  be  recorded  by  the 
corporation  in  the  office  of  the  clerk  of  the  county  in  which  such 
bridge  or  road  or  any  part  thereof  is  to  be  located  before  any  act  shall 
be  done  under  it. 

§  124.  Commissioners  to  lay  out  road. —  If  the  application  for 
the  construction  of  any  such  road  is  granted,  the  board  shall  appoint 
three  disinterested  persons,  not  owners  of  real  estate  in  any  town, 
through  which  the  road  is  to  be  constructed  or  in  any  adjoining  town, 
commissioners  to  lay  out  the  road.  Tiiey  shall  take  the  constitutional 
o.ath  of  office,  and  without  unnecessary  delay  lay  out  the  route  of  such 
road  in  such  manner  as  in  their  opinion  will  best  promote  the  public 
interests ;  they  shall  hear  all  persons  interested  who  shall  apply  to  be 
heard  and  may  take  testimony  in  relation  thereto,  and  shall  cause  an 
accurate  survey  and  description  of  the  road  and  the  necessary  build- 
ings and  gates,  signed  and  acknowledged  by  them  to  be  recorded  in 
the  clerk's  office  of  the  county.  If  the  road  is  situated  in  more  than 
one  county,  such  survey  and  description  shall  be  separate  as  to  that 
portion  in  each  county  and  filed  in  the  office  of  the  clerk  of  the  county 
in*  which  it  relates.  The  corporation  shall  pay  each  commissioner 
three  dollars  for  every  day  spent  by  him  in  the  performance  of  his 
duties  and  his  necessary  expenses. 

*  So  in  the  original. 
25 


TRANSPORTATION  CORPORATIONS  LAW. 

§  125.  Possession  of  and  title  to  real  estate. —  The  route  so 
laid  out  and  surveyed  by  the  commissioners  shall  bo  the  route  of  the 
road,  and  the  corporation  may  enter  upon,  take  and  hold  for  the  pur- 
poses of  its  incorporation,  the  lands  described  in  such  survey  as  neces- 
sary for  the  construction  of  its  road,  and  requisite  buildings  and  gates. 
If  for  any  cause  the  owner  of  any  of  such  lands  shall  be  incapable  of 
selling  the  same  or  his  name  or  residence  can  not,  with  reasonable  dili- 
gence be  ascertained  or  the  corporation  is  unable  to  agree  with  the 
owner  for  the  purchase  thereof  it  may  acquire  title  thereto  by  con- 
demnation. 

§  126.  Use  of  turnpike  road  by  plankroad. —  No  plankroad 
shall  be  made  on  the  roadway  of  any  turnpike  corporation  without  its 
consent,  except  for  the  purpose  of  crossing  the  same.  Any  plank- 
road corporation  may  contract  with  any  connecting  turnpike  corpo- 
ration for  the  purchase  of  its  roadway  or  a  part  thereof,  or  of  its  stock, 
on  such  terms  as  may  be  mutually  agreed  upon,  and  such  stock,  if 
purchased,  shall  be  held  by  the  plankroad  corporation  for  the  benefit 
of  its  stockholders  in  proportion  to  the  amount  of  stock  held  by  each, 
and  a  transfer  of  stock  in  the  plankroad  corporation  shall  carry  with 
it  its  proportional  amount  of  the  turnpike  stock,  and  entitle  the  holder 
thereof  to  his  share  of  the  dividends  derived  therefrom.  After  the 
purchase  of  the  \vhole  of  the  stock  of  any  such  turnpike  corporation 
by  such  plankroad  corporation  the  directors  of  the  plankroad  cor- 
poration shall  be  the  directors  of  the  turnpike  corporation,  and  shall 
manage  its  affairs  and  render  an  account  of  the  same  annually  to  the 
stockholders  of  the  plankroad  corporation.  If  the  plankroad  cor- 
poration is  dissolved,  is  stockholders  at  the  time  of  dissolution  shall 
be  the  stockholders  of  the  turnpike  corporation  in  proportion  to  the 
amount  of  stock  held  by  each,  and  the  stock  of  the  turnpike  corpo- 
ration shall  thereafter  be  deemed  to  be  divided  into  shares  equal  ii? 
number  to  the  shares  of  stock  of  the  late  plankroad  corporation,  and 
scrip  therefor  shall  be  issued  accordingly  to  each  of  the  last  stock- 
holders of  the  plankroad  corporation,  and  the  officers  of  the  turnpike 
corporation  shall  be  the  same  in  number  as  provided  for  in  its  charter 
or  certificate  of  incorporation,  and  shall  be  chosen  by  such  former 
stockholders  of  the  plankroad  corporation  or  their  assigns.  A  corpora- 
tion owning  a  turnpike  road  on  or  adjoining  which  a  plankroad  shall 
have  been  constructed  'may  abandon  that  portion  of  its  road  on  or 
adjoining  the  route  of  which  a  plankroad  is  actually  constructed  and 
used. 

§  127.  Width  and  construction  of  road. —  Every  such  plank- 
road shall  be  so  constructed  as  to  make,  secure  and  maintain  a  smooth 

26 


TRANSPORTATION  CORPORATIONS  LAW. 

and  permanent  road,  the  track  of  which  shall  be  made  of  timber, 
plank  or  other  hard  material  forming  a  hard  and  even  surface,  and 
every  such  turnpike  road  shall  be  bedded  with  stone,  gravel  or  such 
other  material  as  may  be  found  on  the  line  thereof,  and  faced  with 
broken  stone  or  gravel,  forming  a  hard  and  even  surface  with  good 
and  sufficient  ditches  on  each  side  wherever  practicable,  and  all  such 
roads  shall  be  laid  out  at  least  four  rods  wide  and  the  arch  or  bed  at 
least  eighteen  feet  wide,  and  shall  be  so  constructed  as  to  permit  car- 
riages and  other  vehicles  conveniently  to  pass  each  other,  and  to  pass 
on  and  off  such  road  where  intersected  with  other  roads.  Any  corpora- 
tion which  shall  have  once  laid  its  road  with  plank  may  relay  the  came, 
or  any  part  thereof,  with  broken  stone,  gravel,  shelb  or  other  hard 
materials,  forming  a  good  and  substantial  road.  Any  plankroad  or 
turnpike  corporation  may  lay  iron  rails  on  its  road  suitable  for  the 
use  of  wagons  and  vehicles  drawn  by  horses  or  animals  over  its  road, 
but  no  other  motive  power  shall  be  used  thereon. 

§  128.  Construction  of  bridges;  obstruction  of  rafts  prohib- 
ited.—  Every  bridge  constructed  by  any  such  corporation  shall  be 
built  with  a  good  and  substantial  railing  or  sliding  at  least  lour  and 
one-half  feet  high,  and  over  any  stream  navigable  by  rafts  the  corpo- 
ration shall  keep  the  channel  of  the  stream  above  and  below  the 
bridge  free  and  clear  from  all  deposits,  formed  or  occasioned  by  the 
erection  of  the  bridge,  which  shall  in  any  wise  obstruct  the  navigation 
thereof,  and  shall  be  liable  to  all  persons  unreasonably  or  unneces- 
sarily delayed  or  hindered  in  passing  the  same  for  all  damages  sus- 
tained thereby.  Nothing  in  this  act  shall  be  construed  to  authorize 
the  bridging  of  any  river  or  water-course  where  the  tide  ebbs  and 
flows,  or  any  waters  over  which  the  federal  authorities  have  any  con- 
trol, unless  the  consent  of  such  federal  authorities  be  first  obtained; 
nor  the  construction  of  any  bridge  within  the  limits  prescribed  by  any 
existing  law  for  the  erection  or  maintenance  of  any  other  bridge. 

Am'd  by  chap.  778  of  1896.     In  effect  Tttay  20,  1896. 

§  129.  Certificate  of  completion  of  road  or  bridge. — When  any 
such  corporation  shall  have  completed  its  bridge  or  road  or  any  five 
consecutive  miles  thereof,  it  may  apply  to  the  commissioners  of  high- 
ways of  each  town  in  which  the  completed  road  or  bridge  is  situated 
to  inspect  the  same,  and  if  a  majority  of  the  commissioners  are  satis- 
fied that  the  road  or  bridge  is  made  and  completed  as  required  by  law 
and  in  a  manner  safe  and  convenient  for  the  public  use,  they  shall 
make  a  certificate  to  that  effect,  which  shall  be  filed  in  the  office  of  the 
county  clerk.  Each  commissioner  shall  be  paid  by  the  corporation  two 
dollars  per  day  for  his  services  and  necessary  expenses. 

§  130.  Gates,  rates  of  toll;  and  exemption. — Upon  filing 
such  certificate  such  corporation  may  erect  a  toll-gate  at  such  bridge 
or  one  or  more  toll-gates  upon  the  road  so  inspected,  and  may  demand 
and  receive  the  following  rates  of  toll,  a  printed  list  of  which  shall 

27 


TRANSPORTATION  CORPORATIONS  LAW. 

be  conspicuously  posted  at  or  over  each  gate.  If  a  bridge  corporation, 
such  sum  as  shall  be  from  time  to  time  prescribed  by  the  board  of 
supervisors  of  the  county  or  counties  in  which  the  bridge  is  located. 
If  a  turnpike  or  plank- road,  for  every  vehicle  drawn  by  one  animal, 
one  cent  per  mile,  and  one  cent  per  mile  for  each  additional  animal ; 
for  every  vehicle  used  chiefly  for  carrying  passengers,  three  cents  per 
mile,  and  one  cent  per  mile  for  each  additional  animal;  for  every  horse 
rode,  led  or  driven,  three-quarters  of  a  cent  per  mile;  for  every  score 
of  sheep  or  swine,  one  and  one-half  cents  per  mile,  and  for  every  score 
of  neat  cattle,  two  cents  per  mile.  When  diverging  roads  strike  any 
plank-road  or  turnpike  at  or  near  any  toll-gate,  the  board  of  super- 
visors of  the  county  may  direct  that  the  toll  charge  shall  commence 
from  the  point  of  such  divergence,  and  only  for  the  distance  traveled 
on  such  turnpike  or  plank-road,  but  fractions  of  cents  may  be  made 
units  of  cents  in  favor  of  the  plank-road  or  turnpike  corporation. 
The  corporation  may  from  time  to  time  commute,  but  not  for  a  longer 
period  than  one  year  at  any  one  time,  with  any  person  whose  place  of 
abode  shall  adjoin  or  be  near  to  the  road  for  the  toll  payable  at  the 
nearest  gate  on  each  side  thereof,  and  the  commutation  may  be 
renewed  from  year  to  year.  No  tolls  shall  be  charged  or  collected  at 
any  gate,  from  any  person  going  to  or  from  public  worship,  a  funeral, 
school,  town  meeting  or  election  at  which  he  is  a  voter  to  cast  his  vote, 
a  military  parade  which  he  is  required  by  law  to  attend,  any  court 
which  he  shall  be  required  to  attend  as  a  juror  or  witness,  nor  when 
going  to  or  from  his  required  work  upon  any  public  highway,  nor 
when  transporting  troops  in  the  actual  service  of  the  United  States  ; 
and  no  toll  from  persons  living  within  one-half  mile  of  the  gate  by  the 
most  usual  traveled  road  when  not  engaged  in  the  transportation  of 
other  persons  or  property  except  that  persons  living  within  one  mile 
of  the  gate,  by  the  most  usually  traveled  road,  in  an  incorporated  vil- 
lage of  over  six  thousand  inhabitants,  when  not  engaged  in  the  trans- 
portation of  the  persons  or.property  shall  be  exempt  from  the  payment 
of  toll. 
Am'd  by  chap.  538  of  1893. 

§  131.  Toll  gatherers. —  Every  such  corporation  may  appoint  toll 
gatherers  to  collect  toll  at  each  gate,  who  may  detain  and  prevent 
from  passing  through  the  gate,  any  person  riding,  leading  or  driving 
animals  or  vehicles,  subject  to  the  payment  of  toll,  until  the  toll  is 
paid,  but  if  he  shall  unreasonably  hinder  or  delay  any  traveler  or  pas- 
senger liable  t.6  the  payment  of  toll,  or  shall  demand  or  receive  from 
any  person  more  toll  than  he  is  authorized  by  law  to  collect,  he  fchall 
forfeit  to  such  person  the  sum  of  five  dollars  for  every  offense,  and  the 
corporation  employing  him  shall  be  liable  for  the  payment  thereof, 
and  for  any  damages  sustained  by  any  person  for  acts  done  or  omitted 
to  be  done  by  him  in  his  capacity  of  toll  gatherer,  if,  on  recovery  ot 

28 


TRANSPORTATION  CORPORATIONS  LAW. 

judgment  against  the  toll  gatherer  therefor,  execution  thereon  shall  be 
return  nulla  bona. 

§  132.  Penalty  for  running  agate.— Any  person  who,  with  intent 
to  avoid  the  payment  of  toll,  shall  pass  any  gate,  without  paying  the 
toll  required  by  law,  or  shall,  with  his  team,  carriage  or  horse,  turn 
out  of  a  turnpike  or  plankroad  and  pass  any  gate  thereon  on  ground 
adjacent  thereto,  shall  forfeit  for  each  offense  the  sum  of  ten  dollars  to 
the  corporation  injured. 

§  133.  Location  of  gates  and  change  thereof. —  No  such  cor- 
poration shall  erect  any  toll-gate,  house,  or  other  building  within  ten 
rods  of  the  front  of  any  dwelling-house,  barn  or  other  out  house, 
without  the  written  consent  of  the  owner,  and  the  county  judge  of 
the  county  in  which  the  same  is  located  shall,  on  application,  order 
any  building  so  erected  to  be  removed,  and  if  a  majority  of  the  com- 
missioners of  highways  of  any  town,  in  which  a  toll-gate  shall  be 
located,  or  in  an  adjoining  town,  shall  deem  the  location  of  any  gate 
unjust  to  the  public  interests  by  reason  of  the  proximity  of  diverging 
roads  or  otherwise,  they  may,  on  fifteen  days'  written  notice  to  the 
president  or  secretary  of  the  corporation,  apply  to  the  county  court 
of  the  county  in  which  the  gate  is  located,  for  an  order  to  alter  or 
change  its  location.  On  hearing  such  application,  and  viewing  the 
premises,  if  deemed  necessary,  the  court  may  make  such  order  in  the 
matter  as  may  be  just  and  proper.  Either  party  may,  within  fifteen 
days  thereafter,  appeal  to  the  general  term  of  the  supreme  court  from 
such  order,  on  giving  such  security  as  the  county  judge,  making  the 
order,  may  prescribe.  Upon  such  appeal  the  supreme  court,  on 
motion  of  either  party  and  on  due  notice,  shall  appoint  three  disinter- 
ested persons  who  are  not  residents  of  any  town  through  or  into  which 
such  road  shall  run,  or  to  or  from  which  it  is  the  principal  thorough- 
fare, or  any  adjoining  town,  as  referees  to  hear,  try  and  determine  the 
appeal.  Such  referees  shall  view  the  premises  and  the  location  of  the 
gate,  and  hear  the  parties  in  the  same  manner  as  on  the  trial  of  an 
issue  of  fact  by  a  referee  in  a  civil  action  in  the  supreme  court,  and  re- 
port their  decision  thereon  and  the  reasons  therefor,  and  the  evidence 
taken  thereon  to  the  supreme  court,  and  such  court  shall  review  the 
report  and  render  judgment  thereon  as  justice  and  equity  shall  re- 
quire, which  shall  be  final  and  conclusive.  The  referees  shall  be  en- 
titled to  the  same  fees  as  referees  in  civil  actions  in  the  supreme 
court,  to  be  paid  in  the  first  instance  by  the  party  in  whose  favor  their 
report  or  decision  shall  be,  and  the  supreme  court  shall  award  judg- 
ment therefor,  with  such  costs  and  expenses  as  it  may  deem  reasonable, 
to  the  successful  party  on  the  appeal,  which  judgment  shall  be  entered 

29 


TRANSPORTATION  CORPORATIONS  LAW. 

with  the  order  affirming  or  reversing  the  order  appealed  from,  and 
may  be  enforced  by  execution  as  a  judgment  of  a  court  of  record.  If 
the  order  of  the  county  court  is  not  appealed  from,  it  may  be  enforced, 
as  the  court  may  direct,  and  the  court  may  allow  such  costs  as  may  be 
deemed  just  and  equitable. 

§134.  Inspectors;  their  powers  and  duties. —  The  commis- 
sioners of  highways  of  the  several  towns  and  the  trustees  or  other  of- 
ficers in  tlii-  incorporated  cities  and  villages  of  the  state,  who  perform 
the  duties  of  commissioners  of  highways  in  such  citk-s  ninl  villages, 
shail  be  inspectors  of  plank-roads  and  turnpikes,  in  their  respective 
towns,  cities  and  villages.  They  shall  inspect  or  cause  to  be  inspected 
by  one  or  more  of  them  the  whole  of  such  turnpike  or  plank-roads  as 
lies  in  their  respective  towns,  villages  or  cities,  at  least  once  iu  each 
month,  and  whenever  written  complaint  shall  be  made  to  any  in- 
spector, that  any  part  of  such  road  lying  iu  the  town,  city  or  village 
of  such  inspector  is  out  of  repair  he  shall,  without  delay,  view  and  ex- 
amine the  part  complained  of.  If  such  turnpike  or  plank-road  shall 
be  found  to  be  out  of  repair  or  in  condition  not  to  be  conveniently 
used  by  the  public,  such  inspectors  or  either  of  them,  or  the  one  to 
whom  such  complaint  shall  have  been  made,  shall  give  written  notice 
to  the  toll-gatherer,  or  person  attending  the  gate  nearest  the  place  out 
of  repair  or  in  bad  condition  to  cause  the  same  to  be  put  in  good  con- 
dition before  a  time  therein  designated  not  less  than  forty -eight  hours 
after  the  service  of  such  notice,  or  to  appear  before  the  county  court 
of  the  county  in  which  that  part  of  the  road  is  situated,  at  a  time  in 
said  notice  designated,  and  show  cause  why  such  turnpike  or  plank- 
road  should  not  be  repaired  or  put  iu  good  condition  as  in  said  notice 
directed.  If  such  road  shall  not  have  been  theretofore  repaired  or 
put  in  good  condition  as  in  said  notice  directed  then  the  county  court 
shall,  upon  the  return  of  such  notice  hear  the  allegations  and  proofs 
of  the  parties,  and  it  shall  always  be  open  for  that  purpose;  and  if  the 
court  shall  find  such  road  to  be  out  of  repair  or  in  bad  condition  it 
may  give  additional  time  for  the  repair  thereof,  or  it  may  order  the 
gate  nearest  the  place  out  of  repair  or  in  bad  condition  to  be  immedi- 
ately upon  the  service  of  the  order,  or  at  a  time  therein  specified, 
thrown  open  and  to  remain  open  until  the  roud  shall  be  fully  repaired 
at  the  place  directed  to  be  repaired  as  aforesaid.  Such  order  shall  be 
served  in  the  manner  therein  specified  upon  the  keeper  of  the  gate  so 
ordered  to  be  thrown  open.  Any  inspector  within  the  town,  city  or 
village  where  such  road  has  been  repaired  pursuant  to  notice  or  order 
as  aforesaid,  may  certify  that  such  road  has  been  duly  repaired.  The 
fees  of  the  inspector  for  the  services  above  mentioned  shall  be  two  dol- 
lars for  each  day  actually  employed,  together  with  necessary  witnesses, 
fees,  to  be  paid  by  rhe  corporation  or  person  whose  road  is  so  inspected, 
if  the  gates  are  ordered  to  be  thrown  open,  but  otherwise  to  be  charged, 
audited  and  paid  in  the  same  manner  as  other  fees  of  commissioners 
of  highways.  Any  inspector  who  neglects  to  perform  his  duties  shall 
forfeit  to  the  party  aggrieved  the  sum  of  twenty-five  dollars  for  each 
offense.  Every  keeper  of  a  gate  ordered  to  be  thrown  open,  not  im- 
mediately obeying  such  order  or  not  keeping  such  gate  open  until 
such  road  shall  be  fully  repaired  or  until  a  certificate  that  such  road 
has  been  duly  repaired  is  granted,  or  hindering  or  delaying  any  per- 

30 


TRANSPORTATION  CORPORATION  LAW. 

son  in  passing,  or  taking  any  tolls  from  any  person  passing  such  gate 
during  the  time  it  ought  to  be  open,  shall  forfeit  to  the  party  ag- 
grieved the  sum  of  ten  dollars  for  each  offense,  and  the  corporation  or 
person  owning  the  road,  who  shall  refuse  or  neglect  to  obey  the  re- 
quirements of  any  such  order  shall  forfeit  to  the  people  of  the  state 
the  sum  of  two  hundred  dollars  for  each  offense. 
Am'd  by  ch.  343  of  1896.  Took  effect  April  21, 1896. 

§  135.  Change  of  route  ;  extensions  and  branches.  —  Any  such 
corporation  may,  with  the  written  consent  of  the  owners  of  two-thirds 
of  its  capital  stock  and  of  a  majority  of  the  commissioners  of  high- 
ways of  the  town  or  towns,  in  which  any  change  or  extension  is  pro- 
posed to  be  made,  construct  branches  to  its  main  line  or  extend  the 
same,  or  change  the  route  of  its  road  or  any  part  thereof,  and  acquire 
the  right  of  way  for  the  same  in  the  same  manner  as  for  the 
original  or  main  line,  and  may,  by  any  of  its  officers,agents  or  servants, 
enter  upon  lands  for  the  purpose  of  making  any  examination, 
surveyor  map,  doing  no  unnecessary  damage;  but  before  entering 
upon,  taking  or  using  such  lands,  the  corporation  shall  make  a  survey 
and  map  thereof,  designat:ng  thereon  the  lands  of  each  owner  or 
occupant  intended  to  be  taken  or  used,  which  shall  be  signed  and 
acknowledged  by  the  engineer  making  the  same  and  the  president  of 
the  corporation  and  filed  in  the  office  of  the  clerk  of  the  county  iu 
which  the  land  is  situated. 

§  13(3.  Mile -stones,  guide-posts  and  hoist-gates.—  A  mile- 
stone or  post  shall  be  erected  and  maintained  by  every  such  corpora- 
tion on  each  mile  of  its  road,  on  which  shall  be  fairly  and  legibly 
marked  or  inscribed  the  distance  of  such  stone  or  post  from  the  place  of 
commencement  of  the  road,  and  when  the  road  shall  commence  at  the 
end  of  any  other  road  having  mile-stones  or  posts  on  which  the  dis- 
tance from  any  city  or  town  is  marked,  a  continuation  of  that  distance 
shall  in  like  manner  be  inscribed.  A  guide-post  shall  also  be  erected 
at  the  intersection  of  every  public  road  leading  into  or  from  every 
turnpike  or  plankroad,  on  which  shall  be  inscribed  the  name  of  the 
place  to  which  such  intersecting  road  leads  in  the  direction  to  which 
the  name  on  the  guide  post  shall  point.  No  plankroad  or  turnpike 
corporation  shall  erect  or  put  up  any  hoist-gate  on  its  road.  Any 
person  who  shall  willfully  break,  cut  down,  deface  or  injure  any  mile- 
stone, post  or  gate  on  such  road,  or  dig  up,  or  injure  any  part  of  the 
road,  or  anything  belonging  thereto,  shall  forfeit  to  the  corporation 
twenty- five  dollars  for  every  offense,  in  addition  to  the  damage* 
resulting  from  the  act. 

§  137.  Location  of  office  of  corporation. — Within  two  weeks 
after  the  formation  of  any  such  corporation  its  directors  shall  desig- 
nate some  place  within  a  county  in  which  its  road  or  bridge,  or  some 

31 


TRANSPORTATION  CORPORATIONS  LAW. 

part  thereof  shall  be  constructed  as  its  office,  and  shall  give  public 
notice  thereof  by  publishing  the  same  once  in  each  week  for  three 
successive  weeks  in  a  public  newspaper  in  the  county,  and  shall  file  a 
copy  of  the  notice  in  the  office  of  the  county  clerk  of  every  county  in 
which  any  part  of  the  road  or  bridge  is,  or  is  to  be  constructed,  and  if 
the  location  of  such  office  shall  be  changed,  like  notice  of  the  change 
shall  be  published  and  filed,  in  which  shall  be  specified  the  time  of 
making  the  change,  before  it  shall  take  effect.  Every  notice,  sum- 
mons or  other  paper  required  by  law  to  be  served  on  the  corporation 
may  be  served  by  leaving  the  same  at  such  office  with  any  person  hav- 
ing charge  thereof,  at  any  time  between  nine  o'clock  in  the  forenoon, 
and  five  o'clock  in  the  afternoon  of  any  day  except  Sunday  or  a  legal 
holiday. 

§  138.  Consolidation  of  corporations  and  sale  of  franchise. — 
Any  two  or  more  of  such  corporations  may  consolidate  into  one  cor- 
poration on  such  terms  as  the  persons  owning  two-thirds  of  the  stock 
of  each  corporation  may  agree  upon,  and  may  change  the  name  of  the 
road  on  filing  in  the  office  where  the  original  certificates  of  incorpora- 
tion were  filed,  a  certificate  containing  the  names  of  the  roads  so  consoli- 
dated, and  the  name  by  which  such  road  shall  thereafter  be  known. 
Any  plankroad  or  turnpike  corporation  may,  with  the  consent  of  the 
owners  of  sixty  per  cent  of  its  stock,  sell,  and  convey  the  whole  or  any 
part  of  its  rights,  property  and  franchises  to  any  other  domestic 
plankroad  or  turnpike  corporation,  and  such  sale  and  conveyance 
shall  vest  the  rights,  property  and  franchises  thereby  transferred  in 
the  corporation  to  which  they  are  conveyed  for  the  term  of  its  corpo- 
rate existence. 

§  139.  Surrender  of  road. — The  directors  of  any  plankroad  or  turnpike 
corporation  may  abandon  the  whole  or.  any  part  of  its  road  at  either  or  both 
ends  thereof,  upon  obtaining  the  written  consent  of  its  stockholders,  owning 
two-thirds  of  the  stock  of  the  corporation,  which  surrender  shall  be  by  a 
declaration  in  writing  to  that  effect,  attested  by  the  seal  of  the  corporation 
and  acknowledged  by  the  president  and  secretary.  Such  declaration  and  con- 
sent shall  be  filed  and  recorded  in  the  clerk's  office  of  the  county  in  which 
any  part  of  the  road  abandoned  shall  be  situated,  and  the  road  so  abandoned 
shall  cease  to  be  the  road  or  the  property  of  the  corporation,  and  shall  revert 
and  belong  to  the  several  towns,  cities  and  villages  through  which  it  was 
constructed,  and  the  corporation  shall  no  longer  be  liable  to  maintain  it 
or  to  be  assessed  thereon,  or  permitted  to  collect  tolls  for  traveling  over 
the  same,  but  without  impairing  its  right  to  take  toll  on  the  remaining  part 
of  its  road  at  the  rate  prescribed  by  law.  And  whenever  any  turnpike  or 
plankroad  company,  now  existing  or  hereafter  created,  shall  abandon  all  or 
any  part  of  its  road  within  this  state,  in  the  manner  above  provided,  or  when- 
ever its  charter  or  franchise  of  such  company  shall  be  annulled  or  revoked, 
the  road  of  such  turnpike  or  plankroad  company  shall  revert  to  and  belong 
to  the  several  towns,  cities  and  villages  through  which  such  road  shall  pass. 
And  it  shall  be  the  duty  of  the  several  towns,  cities  and  villages  acquiring 
any  road  under  this  act  to  immediately  lay  out  and  declare  the  same  a  free 
public  highway.  And  it  shall  be  the  'duty  of  the  several  town-;,  cities  and 
villages,  to  maintain  and  work  every  road  acquired  under  the  provisions  of 
this  act  in  the  same  manner  as  the  other  roads  of  such  towns,  cities  and  vil- 
lages are  maintained  and  worked.  And  any  town,  city  or  village  may  bor- 
row money  in  the  manner  provided  by.  law  for  the  purpose  of  improving  or 
repairing  the  same. 

Am'd  by  ch.  964  of  1896.    In  effect  May  28,  1896. 

33 


TRANSPORTATION  CORPORATIONS  LAW. 

§  140.  Taxation  and  exemption. — So  much  of  any  bridge  or 
toll-house  of  any  bridge  corporation  as  may  be  within  any  town,  city 
or  village,  shall  be  liable  to  taxation  therein  as  real  estate.  Toll-houpea 
and  other  fixtures  and  all  property  belonging  to  any  plankroad  or 
turnpike  corporation  shall  be  exempt  from  assessment  and  taxation 
for  any  purpose  until  the  surplus  annual  receipts  of  tolls  on  its  road 
over  necessary  repairs  and  a  suitable  reserve  fund  for  repairs  or  relay- 
ing of  plank,  shall  exceed  seven  per  cent  per  annum  on  the  first  cost 
of  the  road.  If  the  assessors  of  any  town,  village  or  city  and  the  cor- 
poration disagree  concerning  any  exemption  claim,  the  corporation 
may  appeal  to  the  county  judge  of  the  county  in  which  such  assess- 
ment is  proposed  to  be  made,  who  shall,  after  due  notice  to  both 
parties,  examine  the  books  and  vouchers  of  the  corporation,  and  take 
euch  further  proof  as  he  shall  deem  proper,  and  decide  whether  such 
corporation  is  liable  to  taxation  under  this  section,  and  his  decision 
shall  be  final. 

§  141.  Hauling  logs  and  timber.—  Any  person  who  shall  draw 
or  haul  or  cause  to  be  drawn  or  hauled,  any  logs,  timber  or  other  ma- 
terial upon  the  bed  of  any  plank  or  turnpike  road,  unless  the  same 
shall  be  entirely  elevated  above  the  surface  of  the  road  on  wheels  or 
runners,  and  the  road-bed  shall  be  injured  thereby,  or  who  shall  do  or 
cause  to  be  done  any  act  by  which  the  road-bed,  or  any  ditch,  sluice, 
culvert  or  drain  appertaining  to  any  turnpike  or  plankroad  shall  be 
injured  or  obstructed,  or  shall  divert  or  cause  to  be  diverted,  any  stream 
of  water  so  as  to  injure  or  endanger  any  part  of  such  road,  shall  forfeit 
to  the  corporation  the  sum  of  five  dollars  for  every  offense  in  addition 
to  the  damages  resulting  from  the  wrongful  act. 

§  142.  Encroachment  of  fences. —  Whenever  the  president  or 
secretary  of  any  turnpike  or  plankroad  corporation  shall  notify  any 
inspector  of  such  roads  in  the  county  where  situated  that  any  person 
is  erecting  or  has  erected  any  fence  or  other  structure  upon  any  part 
of  the  premises  lawfully  set  apart  for  any  such  turnpike  or  plankroad, 
the  inspector  shall  examine  into  the  facts  and  order  the  fence  or  other 
structure  to  be  removed  if  it  shall  appear  to  be  upon  any  part  of  any 
such  road,  and  any  person  neglecting  or  refusing  to  remove  the  same 
within  twenty  days  or  such  further  time  not  exceeding  three  months, 
as  may  be  fixed  by  the  inspector,  shall  forfeit  to  the  corporation  the 
sum  of  five  dollars  for  every  day,  during  which  the  fence  or  otheri 
structure  shall  remain  upon  such  road,  but  no  such  order  shall  require 
the  removal  of  any  fence,  previously  erected,  between  the  first  day  of 
December  and  the  first  day  of  April. 

8 143.  Penalty  for  fast  driving  over  bridges. — Any  plankroad, 

33 


TRANSPORTATION  CORPORATIONS  LAW. 

turnpike  or  bridge  corporation  may  put  up  and  maintain  at  conspicu- 
ous places  at  each  end  of  any  bridge,  owned  or  maintained  by  it,  the 
length  of  whose  span  is  not  less  than  twenty-five  feet,  a  notice  with  the 
following  words  in  large  characters  :  "One  dollar  fine  for  riding 
or  driving  over  this  bridge  faster  than  a  walk."  Whoever  shall  ride  or 
drive  faster  than  a  walk,  over  any  bridge,  upon  which  such  notice 
shall  have  been  placed,  and  shall  then  be,  shall  forfeit  to  the  corpora- 
tion the  sum  of  one  dollar  for  every  such  offense. 

§  144.  Acts  of  directors  prohibited. — No  director  of  any  such 
corporation  shall  be  concerned,  directly  or  indirectly,  in  any  contract 
for  making  or  working  any  road  belonging  to  it  during  the  time  he 
shall  be  a  director.  No  contractor  for  the  making  of  such  road,  or 
any  part  thereof,  shall  make  a  new  contract  for  the  performance  of 
his  work,  or  any  part  of  it,  other  than  by  hiring  hands,  teams,  car- 
riages or  utensils  to  be  superintended  and  paid  by  himself,  unless 
such  new  contract  and  its  terms  be  laid  before  the  board  of  directors 
and  be  approved  by  them. 

§  145.  Actions  for  penalties. — No  action  to  recover  any  penalty 
against  any  turnpike  or  plankroad  corporation,  shall  be  commenced 
or  maintained  against  it,  or  any  of  its  officers  or  agents",  unless  com- 
menced within  thirty  days  after  the  penalty  was  incurred. 

§  146.  Proof  of  incorporation.  —  In  any  action  brought  by  or 
against  any  domestic  turnpike  or  plankroad  corporation,  which  shall 
have  been  in  actual  operation,  and  in  possession  of  a  road  upon  which 
it  has  taken  toll  for  five  consecutive  years,  next  preceding  the  com- 
mencement of  the  action,  parol  proof  of  such  corporate  existence  and 
use  shall  be  sufficient  to  establish  the  incorporation  of  the  corporation, 
for  all  the  purposes  of  the  action,  unless  the  opposing  party  shall  set 
up  a  claim  in  his  complaint  or  answer  duly  verified  of  title  in  himself 
to  the  road,  or  some  part  thereof  stating  the  nature  of  his  title,  and 
right  to  the  immediate  possession  and  use  thereof. 

§  147.  "When  stockholders  to  be  directors. —  When  the  whole 
number  of  stockholders  in  any  turnpike  or  plankroad  corporation  shall 
not  exceed  the  number  of  directors  specified  in  the  certificate  of  incor- 
poration, each  stockholder  shall  be  a  director  of  such  corporation,  and 
the  stockholders  shall  constitute  the  board  of  directors,  whatever  may 
be  their  number,  and  a  majority  thereof  shall  be  a  quorum  for  the 
transaction  of  business. 

§  148.  Dissolution  of  corporation. —  Every  turnpike,  plankroad 
or  bridge  corporation  may  be  dissolved  by  the  legislature  when,  by 
the  income  arising  from  tolls,  it  shall  have  been  compensated  for  all 

34 


TRANSPORTATION  CORPORATIONS  LAW. 

moneys  expended  in  purchasing,  making,  repairing  and  taking  ca*v 
of  its  road,  and  have  received  in  addition  thereto  an  average  annu;  { 
interest  at  the  rate  of  ten  per  cent,  arid  on  such  dissolution  all  tto  / 
rights  and  property  of  the  corporation  shall  vest  in  the  people  of  th* 
state.  Any  such  corporation,  which  shall  not  within  two  years  fronc 
the  filing  of  its  certificate  of  incorporation,  have  commenced  th< 
construction  of  its  road  or  bridge  and  actually  expended  thereon  ten 
per  cent  of  its  capital,  or  winch  shall  not  within  five  years  from  such 
filing  have  completed  its  road  or  bridge,  or,  in  case  such  bridge  ia 
destroyed,  shall  not  rebuild  the  same  within  five  years,  or  which,  for 
a  period  of  five  consecutive  years  shall  have  neglected  or  omitted  to 
exercise  its  corporate  functions  shall  be  deemed  dissolved.  Where  the 
corporation  has  neglected  or  omitted  for  five  years  to  exercise  its  cor- 
porate functions,  and  its  road-bed  or  right  of  way  shall  have  been  used 
as  a  public  highway  for  that  period,  or  where  any  such  corporation 
shall  have  become  dissolved,  or  where  the  road  or  any  part  of  it  of  a 
turnpike  or  plankroad  corporation,  or  the  bridge  of  any  bridge  cor- 
poration, shall  have  been  discontinued,  such  road-bed  or  right  of  way, 
and  such  discontinued  road  or  bridge,  and  the  road  or  bridge  of  any 
such  dissolved  corporation,  shcall  thereafter  be  a  public  highway,  with 
the  same  effect  as  if  laid  out  by  the  commissioners  of  highways  of  the 
town,  and  be  subject  to  the  laws  relating  to  highways  and  the  erec- 
tion, repairing  and  preservation  of  bridges  thereon. 

§  149.  Town  must  pay  for  lands  not  originally  a  highway. — 

When  the  corporate  existence  of  any  plankroad  or  turnpike  corpora- 
tion shall  have  ceased  by  limitation  of  time,  or  where  any  judgment 
of  ouster  or  dissolution,  or  restraining  the  exercises  of  its  franchises 
has  been  rendered  in  any  action  against  it,  such  portion  of  the  line  of 
its  road  as  was  built  over  lands  which  were  originally  purchased  by  it 
and  not  previously  a  public  highway  shall  not  be  used  as  a  public 
highway,  nor  be  taken  possession  or  control  of  by  the  town  in  which 
the  same  may  be,  or  by  any  of  the  authorities  thereof  or  be  claimed  or 
worked  or  used  as  a  public  highway  until  the  town  shall  pay  over  to 
the  treasurer,  receiver  or  other  legal  representatives  of  the  corporation, 
or  its  assigns,  the  principal  sum  of  the  amounts  paid  by  it  for  such 
lands,  as  shown  by  the  deeds  of  conveyance  thereof  to  it,  and  every 
such  judgment  shall  provide  accordingly.  Such  payments  shall  be 
made  within  three  months  after  the  expiration  of  the  corporate  ex- 
istence of  the  corporation,  or  if  any  such  judgment  has  been  or  shall 
be  rendered  within  three  months  after  service  of  written  notice  of  th* 
entry  thereof  on  the  supervisor  of  the  town,  and  the  person  receivir,  { 
such  payment  shall  execute  a  proper  discharge  therefor  and  a  convey  • 

35 


TRANSPORTATION  C^PORATIOXS  LA\V. 


ance  to  the  town  of  all  the  title  .-iid  interest  which  the  corporation 
had  in  such  lands  at  the  expiration  of  its  corporate  existence. 

§  150.  Highway  labor  upon  line  of  plankroad  or  turnpike.  — 

Every  person  liable  for  highway  labor  living  or  owning  property  on 
the  iine  of  any  plankroad  or  turnpike  may,  on  written  application  to 
the  commissioners  of  highways  of  the  town,  on  any  day  previous  to 
making  out  the  highway  warrant  by  the  commissioners,  be  assessed 
for  the  highway  labor  upon  his  property  upon  the  line  of  such  road, 
in  the  discretion  of  the  commissioners  to  be  worked  out  upon  the 
line  of  such  road  as  a  separate  road  district,  and  the  commissioners 
shall  make  a  separate  list  of  the  persons  and  property  so  assessed,  as 
for  a  separate  road  district,  and  deliver  the  same  to  one  of  the  directors 
of  the  corporation  owning  such  road,  who  shall  cause  such  highway 
labor  to  be  worked  out  an  such  road  in  the  same  manner  that  over- 
sees* of  highways  are  required  to  do,  and  such  directors  shall  possess 
the  powers  and  have  the  authority  to  compel  the  performance  of  such 
highway  labor  or  the  payment  of  the  tax  therefor  as  such  oversees* 
now  have  by  law,  and  shall  make  like  returns  to  the  commissioner  of 
highways,  and  any  person  so  assessed  may  commute  for  the  highway 
labor  assessed  upon  him  or  his  property  by  paying  the  sum  now  fixed 
by  law  as  the  commutation  for  such  highway  labor. 

§  151.  Extension  of  corporate  existence.  —  No  turnpike, 
plankroad  or  bridge  corporation  shall  extend  its  corporate  existence, 
pursuant  to  the  provisions  of  the  general  corporation  law,  without  the 
written  consent  of  the  persons  owning  at  least  two-thirds  of  its  capital 
stock,  nor  without  the  consent  of  the  board  of  supervisors  of  each 
county  in  which  any  part  of  its  road  or  bridge  is  situated,  which  con* 
sent  shall  be  given  by  a  resolution  of  the  board  adopted  at  any  regulai 
or  special  meeting,  and  a  copy  of  such  resolution,  certified  by  the 
elerk  of  the  board,  or  verified  by  the  afiidavit  of  some  member  thereof- 
together  with  such  consent  of  the  stockholders,  and  a  statement  veri- 
fied by  the  afiidavit  of  the  president  and  treasurer  of  the  corporation, 
showing  the  actual  capital  expended  upon  the  construction  of  the  road, 
exclusive  of  repairs,  the  name  of  each  town  or  ward  through  or  into 
which  the  road  passes,  and,  if  any  part  of  the  road  shall  have  been 
abandoned,  the  actual  cost  of  the  remaining  part,  exclusive  of  repairs, 
shall  be  filed  with  the  certificate  of  the  continuance  of  the  corporate 
existence.  No  further  abandonment  of  any  road  belonging  to  a  cor- 
poration whose  corporate  existence  has  been  so  extended  shall  be  made, 
except  with  the  consent  of  a  majority  of  the  board  of  supervisors  of 
the  county  in  which  the  abandoned  portion  of  the  road  may  lie,  which 
consent  shall  be  filed  in  the  office  of  the  clerk  of  the  county. 

*  So  in  the  original. 

36 


TRANSPORTATION  CORPORATIONS  LAW. 
ARTICLE  X. 

MISCELLANEOUS   PROVISIONS. 

SECTION  160.  Laws  repealed, 
161    Saving  clause. 

162.  Construction. 

163.  When  to  take  offect. 

SECTION  160.  Laws  repealed,— Of  the  laws  enumerated  in  tho 
schedule  hereto  annexed,  that  portion  specified  in  the  last  column  fe 
repealed.  Such  repeal  shall  not  revive  a  law  repealed  by  any  law 
hereby  repealed,  but  shall  include  all  laws  amendatory  of  the  laws 
hereby  repealed. 

§  161.  Saving  clause. —  The  repeal  of  a  law  or  any  part  of  it 
specified  in  the  annexed  schedule  shall  not  affect  or  impair  any  act 
done,  or  right  accruing,  accrued  or  acquired,  or  liability,  penalty,  for- 
feiture or  punishment  incurred  prior  to  May  first,  eighteen  hundred 
and  ninety-one,  tinder  or  by  virtue  of  any  law  so  repealed,  but 
the  same  may  be  asserted,  enforced,  prosecuted  or  inflicted,  as  fully 
and  to  the  same  extent,  as  if  such  law  had  not  been  repealed ;  and 
all  actions  and  proceedings  civil  or  criminal,  commenced  under  or  by 
virtue  of  the  laws  so  repealed  and  pending  on  April  thirtieth,  eighteen 
hundred  and  ninety-one,  may  be  prosecuted  and  defended  to  final 
effect,  in  the*  same  manner  as  they  might  under  the  laws  then  existing, 
unless  it  shall  be  otherwise  specially  provided  by  law. 

§  162.  Construction. —  The  pr  ^visions  of  this  chapter,  so  far  as 
they  are  substantially  the  same  as  Ihose  of  laws  existing  on  April 
thirtieth  eighteen  hundred  and  ninety-one,  shall  be  construed  as  a 
continuation  of  such  laws  modified  or  amended  apcording  to  the  lan- 
guage employed  in  this  chapter,  and  not  as  new  enactments  ;  and  ref- 
erences in  laws  not  repealed  to  provisions  of  laws  incorporated  int» 
this  chapter  and  repealed  shall  be  construed  as  applying  to  the  pro- 
visions so  incorporated,  and  nothing  in  this  chapter  shall  be  construed 
to  amend  or  repeal  any  provision  of  the  Criminal  or  Penal  Code. 

§  163.  When  to  take  effect. —  This  chapter  shall  take  effect  on 
May  first,  eighteen  hundred  and  ninety-one. 


TRANSPORTATION  CORPORATIONS  LAW. 
SCHEDULE  OP  LAWS  REPEALED. 


REVISED  STATUTES,  PART  1. 

Chapter  18,  title  L 

All. 

Laws  of 

Chapter 

SECTIONS. 

1836  

284  

All 

1838  

262  

All 

1847  

210  

All 

1847  

287  

All 

1847  

398  

All. 

1848  

37  

All. 

1848  

45  

All. 

1848  

265  

All. 

1848  

259  

All. 

1848  

360  

All 

1849  

250  

All. 

1849  

362  

All. 

1850  

71  

All,  except  tli6 

1851  

107  

All  [1st  sect'n. 

1851  

487  

All. 

1851  

98  

All. 

1852  

228  

All. 

1852  

372  

All. 

1853  

124  

All. 

1853  

135  

All. 

1853  

245  

All. 

1853  

471  

All. 

1853  

626  

All. 

1854  

3  

All. 

1854  

87  

All. 

1854  

232  

All. 

1855  

300  

All. 

1855  

485  

All. 

1855  

546  

All. 

1855  

559  

All. 

1857  

83  

All. 

1857  

202  

All. 

1857  

643  

All. 

1858  

10  

All. 

1859  ,  

209  

All. 

1859.....  

311  

All. 

I860  

116  

All. 

1861  

215  

All. 

1861  

238  

All. 

1862  

205  

All. 

1862  

248  

All. 

1862  

425  

All. 

1865  

691  

All. 

1865  

^80  

All. 

1866... 

780... 

All. 

TRANSPORTATION  CORPORATIONS  LAW. 
SCHEDULE  OP  LAWS  REPEALED  —  (Continued). 


Laws  of 

Chapter 

SECTIONS. 

1867  

419  

All. 

1867  

974  

All. 

1868  

253  

All. 

1869  

234  

All. 

1870  

443  

All. 

1870  .  

568  

All. 

1871  

95  

All. 

1872  -.  

128  

All. 

1872  

283  

All. 

1872  

374  

All. 

1872  

779  

All. 

1872  

780  

All. 

1873  

440  

Aii. 

1873  

737  

All. 

1875  

4  

All. 

1875  

120  

All. 

1875  

319...  

All. 

1875  

445  

All. 

1876  

135  

All. 

1876  

373  

All. 

1876  

415  

Ml. 

1876  

435  

All. 

1877  k  

164  

All. 

I,s78  

203  

All. 

1878  

394>  

All. 

1879  

214  

All. 

1879  

253  

All. 

1879  

377  

All. 

1879  

441  

All. 

17  »  

512  

All. 

1880  

90  

All. 

1880  

484  

All. 

1881  

77  

All. 

1881  

117  

All. 

1881  

213  

All. 

1801  

311  

All. 

1881  

313  

All. 

1881  

337  

All. 

1881  

464  

All. 

1881  

674  

All. 

1882  

289  

All. 

1883  

21(5  

All. 

1883  

r!-->H  

All. 

1883  

409  

All. 

1883  

4<so  

All. 

1883  

483  

All. 

1883  

407  

All. 

1884... 

386... 

All. 

89 


TRANSPORTATION  CORPORATIONS  LAW. 
SCHEDULE  OF  LAWS  REPEALED  —  (Continued). 


Laws  of 

Chapter 

SECTIONS. 

1885  

153  

All 

1885  

141  

All 

1885  

422  

All. 

1885  

423  

All. 

1886  

248  

All. 

1886  

321  

All. 

1886  

322  

All. 

1887  

570  

All. 

1888  

462  

All. 

1889  

369  

All. 

CHAP.  412. 

AN  ACT  to  amend  section  four  of  chapter  five  hundred  and  sixty- 
five  of  the  laws  of  eighteen  hundred  and  seventy-five,  entitled 
"An  act  to  incorporate  the  New  York  Cheap  Transportation  Asso- 
ciation." 

BECAME  a  law  May  3,  1894,  with  the  approval  of  the  Governor.  -  Passed,  three- 
fifths  being  present. 

The  People  of  the  State  of  New  York,  represented  in  Senate  and 
Assembly,  do  enact  as  follows  : 

SECTION  1.  Section  four  of  chapter  five  hundred  and  sixty-five  of 
the  laws  of  eighteen  hundred  and  seventy-five,  entitled  "An  act  to 
incorporate  the  New  York  Cheap  Transportation  Association/'  is 
hereby  amended  so  as  to  read  as  follows : 

§  4.  The  property  and  business  of  said  corporation  shall  be  man- 
aged by  thirty-six  directors,  who  shall  be  elected  by  the  members 
thereof  at  the  annual  meeting  of  said  corporation,  which  shall  be 
held  in  the  month  of  January  in  each  yer.r.  Vacancies  among  such 
directors  shall  be  filled  by  the  remaining  directors  until  the  next 
annual  meeting.  The  officers  of  said  corporation  shall  be  a  presi- 
dent, three  vice-presidents,  a  secretary  and  a  treasurer,  who  shall  be 
elected  by  the  directors,  and  shall  be  from  among  their  own  number, 
except  the  secretary,  who  may  be  elected  as  in  the  judgment  of  the 
directors  they  may  determine.  Such  other  officers  and  committees 
as  are  considered  "necessary  shall  be  elected  or  appointed  as  the  by- 
laws prescribe.  Provided,  however,  that  the  managing  directors 
elected  at  the  annual  meeting  to  be  held  in  the  month  of  January  in 
the  year  eighteen  hundred  and  ninety-five  shall  be  elected  in  three 
classes  of  twelve  directors  each,  to  serve  for  the  terms  of  one,  two 
and  three  years  respectively,  and  at  each  annual  meeting  thereafter 
twelve  managing  directors  only  shall  be  elected,  who  shall  serve  for 
the  term  of  three  years. 

§  2.  This  act  shall  take  effect  immediately. 

40 


TRANSPORTATION  COMPANIES. 

No.  1. 

Form  of  Certificate  of  Incorporation  of  a  Navigation  Company. 
STATE  OP  NEW  YORK, 


County  of 


We,  the  subscribers,  for  the  purpose  of  becoming  a  corporation  tat 
the  objects  hereinafter  specified,  do  hereby  certify : 

1.  The  nanle  of  the  company  is  to  be . 

2.  The  specific  objects  for  which  it  is  organized  are  the  following: 

3.  The  waters  to  be  navigated  are 


4.  The  amount  of  its  capital  stock  is  to  be 

5.  The  term  of  its  existence  is  to  be 


6.  The  number  of  shares  of  which  the  capital  stock  shall  consist  is  to 
be . 

7.  The  company  is  to  have directors. 

8.  The  names  and  place  of  residence  of  the  directors  for  the  first 
year  are  as  follows  : 

Names.  Place  of  residence . 


9.  The  principal  office  is  to  be  situated  in  the of ,  in  the 

county  of ,  N.  Y. 

10.  The  number  of  shares  of  stock  which  each  subscriber  of  the 
sertificate  agrees  to  take  in  such  company  is  hereto  set  opposite  the 
names  of  such  subscribers,  respectively. 

1 1.  (In  case  of  ocean  steamers.)     The  ports  between  which  its  vessels 

are  intended  to  be  navigated  are and . 

In  witness  whereof,  we  have  made  this  certificate,  this  day  of 

18 — ;  and  we  hereto  subscribe  our  respective  names  and  the 


number  of  shares  of  stock  which  each  of  us  agrees  to  take  in  such 
poration. 

shares. 


STATE  OF  NEW  YORK,     ) 

County  of ,  /  ss* 

On  this day  of  ,  18 — ,  before  me  personally  came  > 

and    ,   to    me   severally  known  to   be   the   persons  described 

41 


TRANSPORTATION  COMPANIES — FORMS. 

in  and  who  executed  the  foregoing  certificate,  and  they  severally 
acknowledged  that  they  executed  the  same. 

Justice  of  the  Peace. 
STATE  OF  NEW  YORK,     \ 

County  of ,  J 

-s and ,  being  severally  duly  sworn,  does  each 

for  himself  say  that  he  is  one  of  the  directors  named  in  the  foregoing 
certificate;  that  at  least  ten  per  cent,  of  the  amount  of  capital  stock 
named  therein  has  been  in  good  faith  subscribed,  and  at  least  ten  per 
cent,  of  such  subscriptions  has  been  paid  in  cash. 

(Jurat.)  , 


At  least  three  directors  must  execute  the  above. 


No.  2. 

Form  of  Certificate  of  full  payment  of  capital  stock  by  Navigation  Company, 
STATE  OF  NEW  YORK,     \ 
County  of .  /  Sl 

"We,  the  president,    and  ,  ,   ,   and  ,  a 

majority  of  the  directors  of ,  do  hereby  certify  : 

The  amount  of  the  capital  stock  of  said  company  has  been  paid  in. 

The  last  installment  thereof,  to  wit,  the  sum  of dollars,  was 

paid  in  on  the day  of ,  18 — . 

In  witness  whereof,  we  have  made  and  signed  this  certificate,  this 
day  of ,  18—. 


Add  acknowledgment  as  in  preceding  form. 

OF  NEW  "X 
County  of- 


STATE  OF  NEW  YORK,     )  ^ 


, , ,  ,  and  ,  being  severally  duly 

sworn,  does  each  for  himself,  say  that  the  said is  the  president, 

and  said , , ,  and ,  are  directors  of , 

and  a  majority  thereof;  that  he  has  read  the  foregoing  certificate  and 
knows  the  contents  thereof,  and  that  the  same  is  true. 

(Jurat.)  , 


42 


TRANSPORT  VTION  COMPANIES — FORMS. 

No  3 

Form  of  Certificate  of  Incorporation  of  a  Ferry  Company. 
(Follow  form  for  incorporating  Navigation  Company,  inserting  only 
clauses  1,  4,  5, 6,  7  and  8.     And  adding  the  following  clause  :)    2.  The 
places  from  and  to  which  the  ferry  to  be  established  shall  run  are 

from to . 

(Similar  acknowledgment  clause  as  in  such  form.) 


No  4. 
Form  of  affidavit  as  to  payment  of  one-half  of  capital  stock  of  Ferry 

Company. 

STATE  OF  NEW  YORK,      )  s< 
County  of .  f  ss' 


, and ,  being  duly  sworn,  does  each  for  himself 

say  that  he  is  a  director  of ,  and  that  said  ,  and 

constitute  a  majority  of  the  directors  thereof;  that  such  com- 
pany is  a  ferry  corporation  duly  organized  under  the  laws  of  this 
state  ;  and  that  at  least  one-half  of  the  capital  stock  of  such  company 
has  been  actually  paid  in. 

(Jurat.)  , 


No.  5. 

Form  of  Certificate  of  Incorporation  of  a  Stage  Coach  Company. 
(Follow  form  of  certificate  of  Navigation  Company,  inserting  only 
clauses  1,  2,  4,  5,  7,  8,  10,  and  add  the  following  clause :)    3.     The 
route  or  routes  upon  which  such  company  is  to  run,  as  near  as  practica- 
ble, are . 

6.  The  place  of  residence  of  each  subscriber  is  as  follows  : 
(Omit  certificate  as  to  payment  of  ten  per  cent,  of  capital  stock.) 

No.  6. 

Form  of  Certificate  of  Incorporation  of  a  Tramway  Corporation. 

(Follow  form  of  certificate  of  Navigation  Company,  inserting  only 
clauses  1,  2,  4,  5,  6,  7,  8,  and  adding  the  following  clauses : ) 

8.  The  places  from  and  to  which  such  tramway  is  to  be  constructed) 
maintained  and  operated,  are  as  follows  :  From to . 

(  9.)  Its  length,  as  near  as  may  be,  is  to  be . 

(10.)  The  name  of  each  county,  through  which  or  in  which  it  ifl 
intended  to  be  made,  is . 

48 


COMPANIES — FORMS. 

(11.)  The  place  of  residence  of  each  subscriber  to  its  capital  stock  is 
as  follows : 

Name.  Place  of  residence. 


(Omit  certificate  as  to  payment  of  stock.) 


No.  7. 

The  last  form  can  be  readily  adapted,  in  fact  fully  followed,  in  case 
of  a  Pipe  Line  Company. 

(The  following  certificate  must  be  attached.) 
STATE  OF  NEW  YORK,      ) 
County  of ,  / 

, ,  and ,  being  severally  duly  sworn,  does  each 

for  himself  say,  that  he  is  a  director  named  in  the  foregoing  certifi- 
cate of  incorporation  ;  that  at  least  ten  hundred  and  fifty  dollars  of 
stock  for  every  mile  of  line  proposed  to  be  constructed  (or  operated)  has 
been  in  good  faith  subscribed,  and  twenty-five  per  cent,  paid  in  money 
thereon ;  that  it  is  intended  in  good  faith  to  construct  (or  operate)  the 
line  of  pipe  mentioned  in  such  certificate  ;  that  such  corporation  was 
not  projected  or  formed  with  the  intent  or  for  the  purpose  of  injuring 
any  person  or  corporation,  nor  for  the  purpose  of  selling  or  conveying 
its  franchise  to  any  person  or  corporation,  nor  for  any  fraudulent 
purpose. 

(Jurat.)  , 


No.  8. 
Form  of  Certificate  of  a  Gfas  Company. 

(Follow  form  of  certificate  of  Navigation  Company,  inserting  only 
clauses  1,  2,  4,  5,  6,  7,  8,  and  adding  the  following  clause): 

8.  The  name  of  the  town  and  county  in  which  the  operations  of  the 
company  are  to  be  carried  on,  is . 

(Omit  certificate  as  to  payment  of  stock.) 


No.  9. 

The  last  form  of  certificate  will  answer  in  case  of  an  Electric  Light 
Company. 

44 


TRANSPORTATION  COMPANIES — FORMS. 

No.  10. 
Form  of  Certificate  of  Incorporation  of  a  Water-  Works  Company. 

(Follow  form  of  certificate  of  Navigation  Company,  inserting  only 
clauses  1,  2,  4,  6,  7,  8,  9,  10,, and  adding  the  following  clauses) : 

(  3.)  The  names  of  the  towns  and  villages  which  it  is  proposed  to 
eupply  with  water,  are . 

(3a.)  The  permit  of  the  authorities  of  such  towns  and  villages  has 
b.-i-u  granted,  and  is  hereto  attached,  marked  Ex.  "A,"  and  made  a 
part  of  this  certificate. 

(  5 .)  The  post-office  address  of  each  subscriber  to  the  capital  stock 
of  such  company,  is  as  follows : 

Names.  Post-office  address. 


Use  the  same  acknowledgment  clause  and  affidavit  as  are  attached 
to  said  form,  but  the  latter  must  be  verified  by  at  least  seven  directors. 

Ex.  "A,"  referred  to  in  the  foregoing  certificate. 

We,  the  undersigned,  being  a  majority  of  the  board  of  trustees  of 

the  village  of  ,  having  received,  on  the  day  of , 

18 — ,  from ,  an  application,  do  hereby  grant  a  permit,  author- 
izing the  formation  of  a  corporation  for  the  purpose  of  supplying 
such  village  and  the  inhabitants  thereof  with  water. 

In  witness  thereof,  we  have  made  and  signed  this  permit,  this 

day  of ,  18—. 

(Signatures). 

(Add  acknowledgment  clause). 

"Where  intention  is  to  supply  water  to  town  or  unincorporated  vil- 
lage, the  permit  must  be  made  and  acknowledged  by  the  supervisor, 
justice  of  the  peace,  town  clerk  and  highway  commissioners  thereof, 
or  a  majority  of  them. 


No.  11. 
Form  of  Certificate  of  Incorporation  of  a  Telegraph  or  Telephone  Company. 

(Follow  form  of  certificate  of  Navigation  Company,  inserting  only 
clauses  1,  2,  4,  5,  6,  7,  8,  10,  and  adding  the  following  clauses) : 

3.  Its  general  route  and  the  points  to  be  connected  are . 

(9.)  The  post-office  address  of  the  subscribers  is  as  follows: 
Names.  Post-office  address. 


46 


TRANSPORTATION  COMPANIES — FORMS. 

No.  12. 

Form  of  Certificate  for  extension  of  lines  of  Telegraph  or  Telephone  Com- 
pany. 

STATE  OF  NEW  YORK,     } 
County  of ,  ) 

We,  being  at  least  two-thirds  of  the  directors  of ,  do  hereby 

certify  that  the  written  consent  of  the  persons  owning  at  least  two- 
thirds  of  the  capital  stock  thereof  has  been  procured,  as  shown  by  Ex. 
"  A,"  which  is  hereby  made  a  part  of  this  certificate ;  that  such  cor- 
poration desires  to  construct,  own,  use  and  maintain  a  line  of  electric 
telegraph  or  telephone,  not  described  in  the  original  certificate  of  in- 
corporation (or,  state  one  of  the  grounds  specified  in  section  101). 

We  do  hereby,  for  the  said  purpose,  execute  this  amended  certificate  : 

(Insert  same  recitals  as  in  original,  but  make  the  description  cover 
A>th  the  present  and  proposed  routes.) 

In   witness   whereof,  we   have   executed   and  acknowledged    this 
amended  certificate,  this day  of ,  18 — . 

Add  acknowledgment  clause.  (Signatures.) 

Ex.  "  A,"  referred  to  in  foregoing  certificate. 

STATE  OP  NEW  YORK,      ) 
County  of ,  ) 


, and ,  being  severally  duly  sworn,  does  each 

for  himself  say  that  he  is  a  director  of ;  that  the  persons  who 

have  executed  and  acknowledged  the  foregoing  certificate  constitute  at 
least  two-thirds  of  the  directors  of  such  company  ;  and  that  the  written 
consent  of  persons  owning  at  least  two-thirds  of  the  capital  stock  of 
such  company  has  been  obtained  for  carrying  out  the  objects  set  forth 
in  the  foregoing  amended  certificate. 

(Jurat.)  , 


No.  13. 

Form  of  Certificate  of  Incorporation  of  a  Turnpike  or  Plank-road  Company. 

(Follow  form  of  certificate  of  Navigation  Company,  inserting  only 
clauses  1,  2,  4,  5,  6,  7,  10,  and  adding  the  following  clauses) : 

(  3 .)  The  names  and  post-office  address  of  the  directors  for  the 
year  are  as  follows,  viz.: 

Names.  Post-office  address. 


(  8  )  The  termini  of  the  proposed  road  are . 

(9.)     Its  length  is  to  be . 

(11.)  The  name  of  each  town,  city  or  village  into  or  through  which 

such  road  is  to  pass  is >-. 

46 


..\-nu;rA  rsost   ' 'OMPAXIES — FORMS. 

(     .)  The  post-office  address  of  each  subscriber  is  as  follows :. 
Name.  Post-office  Address. 


Add  acknowledgment  clause  as  in  said  form  and  attach  the  following 

certificate : 

•STATE  OP  NEW  YORK,      1 
County  of .  J 

, and ,  being  severally  duly  sworn,  does  each 

for  himself  say  that  he  is  a  director  named  in  the  foregoing  certificate 
of  incorporation  ;  that  the  aggregate  of  the  subscriptions  to  such  cer- 
tificate is  at  least  five  hundred  dollars  for  every  mile  of  road  to  be  con- 
ytructed,  and  that  five  per  cent,  of  such  subscriptions  has  been  actually 
paid  in  cash. 

(Jurat.)  , 


No.  14. 

Form  of  Certificate  of  Incorporation  of  a  Bridge  Company. 

(Follow  form  of  certificate  of  Navigation  Company,  inserting  only 
clauses  1,  2,  4,  5,  6,  7,  10,  and  adding  the  following  clauses) : 

(3.)  The  names  and  post-office  address  of  the  directors  for  the  first 
year  are  as  follows,  viz.: 

Names.  Post-office  address. 


(8.)  The  location  and  plan  of  such  bridge'are . 

(  9 .)  The  post-office  address  of  each  subscriber  is  as  follows : 
Names.  Post-office  Address. 


(Acknowledgment  clause  as  in  said  form.) 

STATE  OP  NEW  YORK,     \ 
County  of .  )  s& 


, and ,  being  duly  sworn,  does  each  for  himself 

say,  that  he  is  a  director  named  in  the  foregoing  certificate  of  incor- 
poration ;  that  the  aggregate  of  the  subscriptions  to  such  certificate  is 
at  least  one-fourth  of  the  amount  of  the  capital  stock  therein  stated, 
and  that  five  per  cent,  of  such  subscriptions  has  been  actually  paid 
in  cash. 


47 


INDEX. 


BM, 

Act,  construction  of 162 

repealing  laws „ 160 

saving  clause 161 

title  of 1 

to  take  effect,  when 163 

Act  incorporating  bridge  company 120-151 

electric  light ". 60-70 

ferry 1-6 

gas 60-70 

navigation 10-13 

pipe  line 10-54 

plankroad 120-151 

stage  coach 20-22 

telegraph 100-105 

telephone 100-105 

tramway 30-33 

turnpike , 120-151 

water- works 80-85 

Bridge 120-151 

See  TURNPIKE. 

abandonment,  how  effected  after  extension  of  corporate  ex- 
istence    151 

appeal  from  order  of  inspectors  to  throw  gates  open. , 134 

See  TURNPIKE. 

from  order  in  proceedings  to  remove  location  of  gates...  133 
See  TURNPIKE. 

appointment  of  toll-gatherers i31 

certificate  of  completion  of  bridge  ., 129 

apply  to  commissioners  of  highways  for,  when 129 

commissioners  to  give  it,  when 129 

compensation  therefor 1 29 

by  whom  paid „ 129 

to  be  filed  in  county  clerk's  office 129 

commissioners  of  highways,  when  to  give  certificate  of  com- 
pletion   129 

commutation  of  toll , 130 

See  TURNPIKE. 
consolidation   138 

See  TURNPIKE. 
49 


liXDEX. 

Sic. 
Bridge,  construction  or 128 

good  and  substantial  railing  or  siding 128 

height  of , 128 

not  over  streams,  where  tide  ebbs  and  flows 128 

not  over  water  navigabk  bj  sail  vessels  or  steamboats. ..  128 

not  over  water  used  as  harbor 128 

within  what  distance  of  each  other „ 128 

contract 144 

See  TURNPIKE. 

directors,  not  to  be  concerned  in  contracts  with  company  ...  144 

when  all  the  stockholders  to  be 147 

quoru  m  in  such  case 147 

duties  of  toll-gatherers 131 

exemptions  from  toll 130 

See  TURNPIKE. 

extension  of  corporate  existence 151 

See  TURNPIKE. 

gates,  erected  when 130 

rates  of  toll 130 

how  fixed 130 

to  be  posted,  where . . . .  : 130 

location  of • 133 

See  TURNPIKE. 

ordered  to  be  thrown  open,  to  remain  open  during  appeal.  134 
incorporation,  proof  of 146 

See  TURNPIKE. 
inspectors 134- 

See  TURNPIKE. 

liability  of  company  for  acts  of  its  toll-gatherers 131 

after  judgment  against  him  and  return  of  execution 

nulla  bona 131 

must  keep  channel  of  stream  navigable  by  rafts  free  from 

deposits • 128 

name  of,  on  consolidation,  may  be  changed 138 

how  effected 138 

notice  may  be  maintained  at  end  of  bridge 143 

See  TURNPIKE. 
office,  change  of  location . . . .  137 

See  TURNPIKE. 
office,  location  of 13? 

See  TURNPIKE. 

penalty,  etc o 

See  TURNPIKE. 
50 


INDE*. 

Stc. 

Bridge,  liability  of  company,  penalty,  etc.,  actions  for 145 

limitation  of 145 

for  riding  or  driving  over  bridge  after  notice 1*3 

amount  of 143 

for  running  gate 132 

for  unreasonably  or  unnecessarily  delaying  or  hinder- 
ing passage 128 

imposed  on  company  for  disobedience  of  inspector's 

order 134 

imposed  upon  gate-keeper „ 134 

See  TURNPIKE. 

powers  of  toll-gatherers 131 

restrictions  on 121 

navigable  stream  not  to  be  bridged 121 

nor  passage  of  rafts  of  certain  size  to  be  endangered. . . .  121 

restrictions  upon  construction J28 

cannot  build,  over  stream  where  tide  ebbs  and  flows  128 
water  navigable  by  sail  vessels  or 

steamboats 128 

used  as  harbor 128 

within  what  distance  of  each  other 128 

service  of  papers  on  company 137 

See  TURNPIKE. 

subject  to  penalty  for  unreasonably  or  unnecessarily  de- 
laying passage 128 

taxation 140 

as  real  estate 140 

where  taxable 140 

toll-gatherers 131 

See  TURNPIKE. 

toll,  rates  of 130 

how  fixed , 130 

list  to  be  posted 130 

may  be  commuted 130 

by  whom 130 

for  what  length  of  time 130 

who  exempted  from 130 

person  attending  election 130 

funeral 130 

juror 130 

school  meeting 130 

town  meeting 130 

trial  as  witness 130 

worship 130 

living  within  one  mile 130 

working  on  highway 130 

troops  in  actual  service 130 

Electric  light 60-70 

consolidation 61 

II 


LtfDEX. 

Sic. 

JJlectric  light,  consolidation,  in  what  manner „ ; 61 

deposit  of  money,  as  security 66 

amount  required,  how  ascertained 66 

interest  thereon  to  be  paid  to  consumer 66 

directors,  number  t)f 60 

duration  not  to  exceed  fifty  years 60 

entry  of  building  for  examination,  etc 67 

by  agent  duly  au thorized 67 

must  exhibit  written  authority „ 67 

fine  imposed  for  preventing,  etc 67 

incorporation  of,  how  effected 60 

certificate  of 60 

what  to  contain 60 

purposes  of 60 

powers  of.. 60 

additional 61 

refusal  or  neglect  to  pay  rent,  effect  of 68 

or  to  make  deposit 68 

electric  light  may  be  turned  off 68 

meter,  etc.,  removed 68 

supplying  electric  light,  when  bound  to  do  so 65 

distance  of  building 65 

former  indebtedness  therefor  must  be  paid . .    65 

no  refusal  on  ground  of  former  occupant's  debt 65 

unless  assumed 65 

refusal  subjects  to  fine 65 

exceptions  thereto 65 

taxation,  exemption  from 61 

for  municipal  purposes 61 

period  not  exceeding  three  years 61 

Ferry 2-6 

capital  stock 3,  5 

affidavit  of  payment 3 

what  to  contain 3 

failure  to  pay 5 

effect  of 5 

when  to  be  paid 5 

certificate  of  incorporation 2 

what  to  contain 2 

condition  precedent  to  commencing  business 3 

directors,  number  of 2 

duration  of  not  to  exceed  fifty  years 2 

incorporation,  how  effected 2 

powers  of 4 

additional 4 

what  it  can  take  by  grant  or  assignment 4 

what  subject  to 4 

schedule 6 

must  post,  when 6 

where 6 

what  to  contain * 6 

52 


INDEX. 

SML 

Gas 60-70 

consolidation 61 

in  what  manner 61 

deposit  of  money,  as  condition  precedent 66 

amount  to  be  required 66 

interest  to  be  paid  to  consumers 66 

deputy  inspector  of  gas  meter 63 

appointment,  how  made 03 

dutic*,  defined 63 

residence 63 

salary 63 

by  whom  paid 63 

term  of  office 63 

directors,  number  of 60 

duration,  not  to  exceed  fifty  years 60 

entry  of  building  for  examination,  etc 67 

by  agent  duly  authorized 67 

must  exhibit  written  authority 67 

fine  imposed  for  preventing,  etc 67 

gas-meters,  inspection  of 64 

none  to  be  used  without  inspection,  etc 64 

except  in  certain  cases 64 

testing  apparatus  to  be  kept  by  company 64 

when  meter  tested 64 

who  to  pay  therefor 64 

illuminating  power,  in  certain  cities 70 

how  measured 70 

incorporation,  how  effected 60 

certificate  of 60 

what  to  contain 60 

purposes  of 60 

inspector  of  gas  meters 62 

appointment,  how  made ....  62 

duty,  defined , 62 

removal -  62 

residence 62 

salary 62 

how  paid 62 

term  of  office 62 

neglect  or  refusal  to  pay  rent,  effect  of 68 

or  to  make  deposit 68 

gas  may  be  turned  off 68 

meter,  etc. ,  removed 68 

price  of  gas  in  certain  cities 70 

powers  of 61 

additional , 61 

rent  for  meters,  none  to  be  charged 69 

penalty  therefor 69 

how  and  where  recovered 69 

part  of  corporate  funds ...  69 

supplying  gas,  when  bound  to  do  so 65 

53 


INDEX. 

r 

8HL 

Gas,  supplying,  distance  of  building 6d 

former  indebtedness  therefor  must  be  paid 65 

no  refusal  on  ground  of  former  occupant's  debt.   65 

unless  assumed 65 

refusal  subjects  to  fine 65 

exceptions  thereto 65 

Navigation •. 10-13 

capital  stock 12 

certificate  of  payment 12 

by  whom  executed 12 

to  be  filed " 12 

what  to  contain 12 

when  recorded 12 

where  recorded 12 

capital  stock,  amount  of 10 

certificate  of  incorporation 10 

certificate,  supplemental 11 

effect  of 11 

to  extend  business 11 

to  file  from  time  to  time 11 

what  to  contain 11 

directors,  number  of 10 

incorporation - 10 

number  of  persons  required 10 

purposes 10 

term  of  existence 10 

limitation  of  this  article 13 

railroad  corporation  not  to  own  or  hold  any  stock 10 

stock  of,  not  to  be  owned  or  held  by  railroad  corporation ....  10 

Pipe  line 40-54 

canals,  conditions  of  crossing,  etc 44 

capital  stock,  amount  of 40 

cities,  construction  of,  through 46 

not  without  resolution  of  common  council 46 

pavements,  removal  of 46 

to  replace,  company  must  give  bond 46 

suit  therefor  to  be  brought  by  common  council 46 

city  officers,  when  may  grant  lauds 48 

commissioners  to  relocate  line 41 

application  for 41 

appointment  how , 41 

to  what  court 41 

in  what  district 41 

who  may  make, 41 

proceedings  before 41 

report  of 41 

consent  of  local  authorities 45 

application  to  supreme  court,  when  not  given,  for  per- 
mission   45 

on  petition  and  notice 45 

county  officers,  when  may  grant  lauds 48 

54 


INDEX. 

SKI. 

Pice  line,  creeks,  conditions  of  crossing,  etc 44 

directors,  number  of 40 

fences,  not  required  to  maintain. 53 

rights  of  adjoining  owner  in  such  case 53 

trespass,  when  not  liable  for 53 

when  built,  must  provide  crossings,  etc 53 

no  claim  for  contribution  for  division  fence 53 

when  not  built,  adjoining  owner  may  build 54 

liability  of  company  in  such  case 54 

gas-house,  not  to  be  erected  in  cities  without  corporate  consent.  46 

highway,  how  to  be  crossed 43 

compensation,  how  to  be  made 43 

exclusive  title  or  use,  not  acquired 43 

pipes  not  to  run  along  or  under  its  lands 43 

Incorporation  of 40 

certificate  of 40 

contain  what • 40 

indorsement  or  attachment  to 40 

number  of  persons  required 40 

Indian  reservation,  construction  over 47 

contract  with  chiefs 47 

effect  of  contract 47 

must  be  ratified  by  county  court. 47 

liability  as  common  carriers , 50 

location  of  line 41 

how  to  be  marked  before  proceeding  to  construct  or  con- 
demn   41 

map  and  survey  to  be  made , 41 

how  certified 41 

where  filed 41 

written  notice  of  filing 41 

to  be  given c.. 41 

to  whom 41 

what  to  contain 41 

monthly  statement  to  be  made 52 

verified,  how = 52 

by  whom 52 

what  to  contain 52 

when  made 52 

where  filed  and  posted 52 

order  of  court  on  commissioners'  report 41 

pipes,  to  carry  petroleum,  gas,  etc.,  when  prohibited 42 

care  in  locating  them , 42 

consent  of  majority  of  property-owners,  necessary 42 

plankroad,  how  to  be  crossed 43 

compensation,  how  to  be  made 43 

exclusive  title  or  use  not  acquired 43 

pipes  not  to  run  along  or  under  its  land 43 

powers 49 

additional • 49 

to  cause  examinations  and  surveys  to  be  made 49 

55 


INDEX. 

SE&, 

Pipe  line,  powers  to  enter  upon  lands,  etc 49 

to  lay  out  its  pipe  line  route,  etc <,„.,...  49 

to  regulate  time,  manner  and  terms  of  transportation. . .  49 

to  take  and  convey,  through  pipes,  property,  etc 49 

.  to  take  and  hold  voluntary  grants,  etc 49 

proceedings  before  commissioners,  expenses  of 41 

how  enforced 41 

proceedings  for  condemnation,  when  to  be  commenced. . .     41,  42 

property  received  for  transportation,  conditions  of  delivery.  51 

railroad,  how  to  be  crossed 43 

compensation,  how  to  be  made 43 

exclusive  title  or  use  not  acquired 43 

pipes  not  to  run  along  or  upon  its  lands 43 

rates  and  charges  to  be  fixed  by  general  rules 50 

printed  or  written 50 

publicly  exposed 50 

receipt,  certificate  or  order/ when  not  to  be  made,  accepted 

or  issued 51 

not  to  be  used  again,  when 51 

risers,  conditions  of  crossing,  etc 44 

shares  of  stock,  amount  of,  to  be  taken 40 

state  lands,  construction  over 48 

commissioners  of  land  office  may  grant  lands. 48 

terms  may  be  agreed  upon 48 

title  may  be  acquired  by  condemnation 48 

storage,  may  provide  receptacle  for 50 

taxation 55 

assessed  how 55 

assessed  where 55 

payment  or  commutation  of 55 

town  officers,  when  may  grant  lands 48 

turnpike,  how  to  be  crossed 43 

compensation,  how  to  be  made 43 

exclusive  title  or  use  not  acquired 43 

pipes  not  to  run  along  or  under  its  land 43 

use  of  line  to  be  public „ 50 

villages,  construction  of,  through 46 

not  without  resolution  of  trustees 0 .  46 

vouchers  to  be  canceled  and  filed 51 

how  canceled 51 

when  authority  of  public  officers  necessary 42 

when  consent  of  owner  necessary 42 

written  and  acknowledged 42 

when  line  not  to  be  laid  across  or  upon  public  highway,  turn- 
pike or  plankroad 42 

when  line  not  to  be  located  or  constructed  through  or  under 

building,  dooryard,  lawn,  garden  or  orchard 42 

work  of  construction,  when  to  commence 41 

Plaukroad , 1 20-151 

See  TURNPIKE. 
5G 


INDEX. 

SBC. 

Plankroad,  abandonment,  how  effected  after  extension  of  corpo- 
rate existence 151 

appeal  from  decision  of  assessors  as  to  exemption  claim.. . ..  140 
See  TURNPIKE. 

from  order  of  inspectors  to  throw  gates  open 134 

See  TURNPIKE. 

from  order  in  proceedings  to  remove  location  of  gate. . . .  133 
See  TURNPIKE. 

appointment  of  toll-gatherers 131 

branches 135 

certificate  of  completion  of  road 129 

or  of  five  consecutive  miles  thereof. 129 

application  to  commissioners  of  highways  therefor 129 

commissioners  to  give  it  when 129 

compensation  therefor 129 

by  whom  paid 129 

to  be  filed  in  county  clerk's  office 129 

change  of  route 135 

See  TURNPIKE. 
commissioners  of  highway,  when  to  give  certificate  of  com 

pletion 129 

commutation  of  toll 130 

See  TURNPIKE. 

consolidation  .' 138 

See  TURNPIKE. 

construction  of  road 127 

of  what  material 127 

how  built 127 

to  be  secure  and  permanent 127 

vehicles,  etc.,  to  be  enabled  to  pass 127 

width 127 

contract 144 

See  TURNPIKE. 

contractor 144 

See  TURNPIKE. 

contract  with  connecting  turnpike  road 126 

to  purchase  road  or  part  thereof 126 

stock 126 

directors,  after  purchase  of  connecting  turnpike 126 

shall  be  directors  of  such  turnpike 126 

manage  its  affairs 126 

render  annual  account 126 

not  to  be  concerned  in  contracts  with  company 144 

quorum  in  such  case 147 

when  all  the  stockholders  to  be 147 

discontinued  road,  or  path  thereof,  becomes  public  highway.  148 

dissolution  of,  after  purchase  of  connecting  turnpike 126 

shareholders  to   be  stockholders  in  such  turnpike 126 

in  what  proportion ,...,,,, 

57 


Bw 

Plankroad,  dissolution  of,  stock  of  turnpike,  how  to  be  divided..  126 

scrip  to  be  issued  for 126 

dissolution  of „ 143 

See  TURNPIKE. 

duties  of  toll-gatherers 131 

encroachment  of  fences,  etc. ,  on  road 142 

See  TURNPIKE. 
exemption  from  toll 130 

See  TURNPIKE. 
extension  of  corporate  existence 151 

See  TURNPIKE. 

extension  of  route 135 

gates,  etc 130 

See  TURNPIKE. 
gates,  location  of 133 

See  TURNPIKE. 

gates  ordered  to  be  thrown  open,  to  remain  open  during  ap- 
peal     134 

guide-post  to  be  erected 136 

See  TURNPIKE. 

highway  labor  upon  line  of  road 150 

See  TURNPIKE. 

hoist-gates  not  .to  be  erected  on  road 136 

incorporation,  proof  of 146 

See  TURNPIKE. 

inspectors ,- 134 

See  TURNPIKE. 

inspectors  to  order  removal  of  encroachment,  when 142 

iron  rails  may  be  laid  on  its  road 127 

for  what  vehicles. 127 

what  motive  power  used  thereon 127 

liability  of  company  for  acts  of  its  toll-gatherers 131 

See  TURNPIKE. 

may  relay  its  road  with  other  material 127 

what  kinds 127 

mile-stone  to  be  erected  and  maintained 136 

See  TURNPIKE. 

name  of,  on  consolidation,  may  be  changed 138 

how  effected 138 

notice  may  be  maintained  at  end  of  bridge ....    ]  43 

office,  location  of 137 

See  TURNPIKE. 

office,  change  of  location 137 

See  TURNPIKE, 

penalty,  actions  for 145 

limitation  of , 145 

penalty,  etc 

See  TURNPIKE. 
58 


INDEX. 

SBC 

Plankroad,  penalty,  etc.,  for  injuring  mile-stone,  guide-post  or  road  136 

penalty  for  injuring  road,  etc 14i 

See  TURNPIKE. 
for  refusal  or  neglect  to  remove  encroachment  after 

notice  from  inspectors 142 

for  riding  or  driving  over  bridge  after  notice 143 

amount  of 143 

for  running  gate 132 

imposed  on  company  for  disobedience  of  inspector's 

order 134 

imposed  on  gate-keeper 134 

powers  of  toll-gatherers 131 

public  highway,  when  road  to  become 148 

reversion  of  road  and  property  on  surrender 139 

to  whom 139 

sale  of  property  and  franchise 138 

See  TURNPIKE. 

service  of  papers  on  company 137 

See  TURNPIKE. 

surrender . 139 

See  TURNPIKE. 

taxation,  exemption  from 140 

See  TURNPIKE. 

toll-gatherers , , 131 

See  TURNPIKE. 

toll,  rates  of 130 

See  TURNPIKE. 

town  must  pay  for  lands  not  originally  a  highway,  when ....  149 
See  TURNPIKE. 

re  coach 20-22 

capital  stock,  amount  of 20 

certificate  of  incorporation 20 

what  to  con  tain 20 

directors,  number  of 20 

incorporation  of,  how  effected 20 

number  of  persons  required 20 

purposes  ot : 20 

powers  of. 22 

additional     22 

to  erect  and  maintain  necessary  buildings 22 

to  take  and  convey  persons  and  property 22 

route,  alteration  of 21 

extension  of 21 

how  effected 21 

Telegraph 100-105 

affidavit  of  directors  to  amended  certificate 101 

amended  certificate  must  be  filed,  when 101 

contain  what 101 

how  verified 101 

61 


INDEX. 

SBC. 

Telegraph,  certificate  of  incorporation 101 

by  whom  made 101 

contain  what 101 

how  verified 101 

must  be  filed 101 

condemnation,  to  acquire  right  to  construct  by 102 

when  cannot  agree  with  owner 102 

consolidation 104 

acquire  by  purchase,  etc.,  property  of  other  such  corpora- 
tion    104 

dispose  of  property  to  other  such  corporation 104 

ratified  to  be  valid 104 

in  what  manner 104 

stock  of  purchasing  corporation  may  be  taken  in  pay- 
ment    104 

consent  of  stockholders,  when  required 101 

construction  of  lines 102 

compensation  for  rights  taken 102 

how  ascertained 102 

over  or  through  any  land 102 

over  or  under  any  public  roads,  etc 102 

over  or  under  any  waters 102 

dispatches,  transmission  of 103 

order  of  sending ; 103 

payment  of  what  charges 103 

refusal  to  send  subjects  to  fine , 103 

directors,  number  of 100 

extension  of  lines,  how  effected 101 

amended  certificate  must  be  filed 101 

contains  what 101 

how  verified 101 

consent  of  persons  owning  two-thirds  of  capital  stock..  101 

director's  affidavit  on  or  to  certificate 101 

incorporation,  how  effected 100 

certificate  of 100 

what  to  contain 100 

number  of  persons,  required 100 

purposes  stated 100 

lands,  construction  of  lines  over  or  through 102 

subject  to  right  of  full  compensation 102 

how  ascertained 102 

may  acquire  property  of  other  like  corporation 104 

dispose  of  property  to  other  like  corporation 104 

in  what  manner 104 

neglect  or  refusal  to  send  dispatch 103 

either  for  usual  rates 103 

in  regular  order 103 

or  with  impartiality 103 

penalty  to  be  paid  to  sender 103 

not  limited  wholly  to  this  state 100 

order  of  sending  dispatches 103 

60 


INDEX. 

BM 

Telegraph,  order   of  sending  dispatches,  exception  in  favor  of 

newspaper  publishers  or  proprietors 103 

penalty  for  refusal  or  neglect  to  send 103 

for  usual  charges . 103 

in  regular  order 103 

or  with  impartiality 103 

to  whom  paid 103 

policemen,  special 105 

appointment,  by  whom 105 

how  made 105 

duties  of 105 

powers  of 105 

qualifications  of 105 

revocation  of 105 

salary 105 

by  whom  paid 105 

uniform,  etc 105 

public  roads,  streets  and  highways 102 

right  to  construct  lines  over  or  under 102 

subject  to  compensation 102 

how  ascertained 102 

stock  of  another  corporation,  when  taken 104 

transmission  of  dispatches 103 

from  whom  to  receive „ 103 

impartially  and  in  good  faith 103 

in  order  in  which  received 103 

exceptions  made 0 103 

on  payment  of  usual  charges 103 

refusal  or  neglect  subjects  to  fine 103 

amount  of  fine 103 

water  within  limits  of  state 102 

right  to  construct  lines  through,  across  or  under 102 

subject  to  compensation 102 

how  ascertained 102 

Telephone 100-105 

See  TELEGRAPH. 

Title,  act  to  be  known  by 1 

Tramway 30-33 

certificate  of  incorporation 30 

what  to  contain 30 

condemnation,  may  acquire  land  by 32 

crossing   over  railroad,   highway,  turnpike,    plankroad,    or 

canal 

not  to  interfere  with  free  use 

directors,  number  of 

incorporation  of 30 

number  of  persons  required 30 

purposes  of 30 

powers  of 

additional 

to  cause  examinations  and  surveys  to  be  made. ....  31 

61 


INDEX. 

Sao. 
Tramway,  powers  of,  additional,  to  erect  and  maintain  necessary 

buildings 31 

to  lay  out  tramway 31 

Turnpike 120-151 

abandonment 139 

See  SURRENDER. 

abandonment,  how  effected  after  extension  of  corporate  exist- 
ence    151 

actions  for  penalty 145 

limitation  of 145 

agreement  to  use  highways 122 

how  made 122 

with  whom 122 

appeal  from  decision  of  assessors  as  to  exemption  claim 140 

county  judge's  decision  final 140 

proceedings  on 140 

appeal  from  order,  in  proceeding  to  remove  location  of  gate.  133 

how  taken 133 

to  general  term  of  supreme  court 133 

referees,  appointment  of 133 

duties  of * 133 

fees 133 

hearing  before 133 

report  of ; 133 

supreme  court  to  award  judgment 133 

with  costs  to  successful  party 133 

appeal  from  order  of  inspectors  to  throw  open  gates 134 

notice  of  appeal 134 

proceedings  on 134 

service  of 134 

time  within  which  taken 134 

to  what  court 134 

application  to  board  of  supervisors  to  acquire  land 123 

in  case  it  cannot  be  procured  by  gift,  purchase  or  agree- 
ment   123 

it  must  be  made  to  boards  of  what  counties 123 

may  be  made  at  annual  or  special  meeting 123 

how  special  meeting  called ' 123 

notice  thereof,  how  served 123 

who  to  pay  expenses  thereof 123 

notice  of  application  published 123 

for  what  time 123 

in  what  newspaper 123 

what  to  contain 123 

persons  interested  may  appear  on  the  hearing 123 

property-owners  may  appear 123 

what  may  be  done  on  hearing 123 

appointment  of  toll-gatherers 131 

board  of  supervisors,  application  to 123 

at  annual  or  special  meeting 123 

may  adjourn  such  meeting , 123 

62 


INDEX. 

/ 

fart. 

Turnpike,  board  of  supervisors,  may  take  testimony 123 

or  authorize  its  committee  to  take  it 123 

order  of  board  on  such  application 123 

where  recorded 123 

branches 135 

See  TUENPIKE. 

capital  stock,  amount  of 120 

payment  of , 120 

certificate  of  incorporation , 120 

contain  what  i'acts.. 120 

director's  affidavit  to  be  indorsed  or  annexed 1-iO 

how  executed 120 

filed 120 

certificate  of  completion  of  road 129 

or  five  consecutive  miles  thereof 129 

application  to  commissioners  of  highways  therefor 129 

commissioners  to  give  it,  when 129 

compensation  therefor 129 

by  whom  paid. :   129 

to  be  filed  in  county  clerk's  office 129 

change  of  route 135 

consent  of  whom,  necessary 135 

how  made 135 

land  for,  how  acquired 135 

right  to  enter  upon,  for  survey,  etc 135 

survey  to  be  made,  when 135 

how  certified 135 

where  filed , 135 

commissioners  of  highways,  when  to  give  certificate  of  com- 
pletion    129 

commissioners  to  lay  out  road 124 

appointment  of,  by  whom. , 124 

who  qualified 124 

compensation 124 

constitutional  oath  of  office  must  be  taken 124 

duties  of 124 

must  hear  all  interested  persons 124 

take  testimony  in  relation  thereto 124 

shall  cause  survey  and  description  to  be  recorded. .   124 

in  what  office 124 

commutation  of  toll 130 

by  whom •  •  •  •   130 

for  what  length  of  time 130 

condemnation  to  take  highway 122 

compensation 122 

to  be  paid  to  whom 122 

to  be  used,  how 122 

consolidation 1 

on  what  terms ••« 138 

persons  owning  two-thirds  of  stock  to  determine ] 

construction  of  road •  127 


INDEX. 

SBC. 

Tnrnpike,  construction  of  road,  of  what  material. 127 

how  built .' 127 

to  be  secure  and  permanent 127 

vehicles,  etc.,  to  be  enabled  to  pass 127 

width 127 

contract  with  plankroad  to  sell  its  road,  when 126 

or  part  thereof. 126 

or  stock 127 

new,  cannot  be  made  by  contractor  with  company,  with- 
out approval  of  board,  etc.    144 

contractor  cannot  make  new  contract,  etc.,  without  approval 

of  board,  etc. , . ". 144 

conveyance  of  property  and  franchises 138 

See  SALE. 

directors,  affidavit  of 120 

number  of 120 

not  to  be  concerned  in  contracts  with  company 144 

when  all  the  stockholders  to  be 147 

quorum  in  such  case .- 147 

discontinued  road,  or  part  thereof,  becomes  public  highway..  148 

dissolution  of 148 

by  legislature,  when 1 48 

effect  of 148 

laches  in  proceeding  to  begin,  complete  or  rebuild,  etc. ,  148 

neglect  or  omission  to  exercise  franchise 148 

road  to  become  public  highway t  148 

duration,  not  to  exceed  fifty  years 120 

duties  of  toll-gatherers ,.  131 

encroachment  of  fences,  etc.,  on  road 142 

how  removed 142 

notice  of,  by  whom: 142 

to  whom , 142 

order  of  removal  by  inspectors 142 

not  to  be  made,  when 142 

penalty  for  refusal  or  neglect  to  remove  after  notice. . . .  142 

wnat  notice 142 

exemptions  from  toll 130 

person  attending  as  juror 130 

person  attending  as  witness 130 

person  attending  election 130 

person  attending  funeral 130 

person  attending  school  meeting 130 

person  attending  town , 130 

person  attending  worship 130 

person  living  within  one  mile,  when 130 

working  on  highway 130 

troops  in  actual  service 130 

extension  of  corporate  existence 151 

requirements  additional  to  provisions  of  general  corpora- 
tion law 151 

64 


INDEX. 

8  BO. 

Turnpike,  requirements,  resolution  of  board  of  supervisors  neces- 
sary   151 

verified  statement  .of  president,  etc 150 

written  consent  of  two-thirds  of  stockholders 150 

extensions  of  route.  , 135 

See  CHANGE  OF  ROUTE. 

gates,  erected  when 130 

rates  of  toll 130 

location  of , . . .  133 

not  within  ten  rods  of  building 133 

without  consent  of  owner 133 

removal  of  building 133 

application,  by  whom 133 

order. 133 

removal  of  location  of  gate 133 

application,  by  whom 133 

on  what  notice 133 

to  what  court 133 

hearing,  how  conducted 133 

order,  now  enforced 133 

appeal  from 133 

how  taken 133 

proceedings  on 133 

ordered   to  be   thrown   open,    to  remain  open  during 

appeal 134 

gate,  running,  penalty  for  . . , 132 

guide-post  to  be  erected 136 

at  what  places „ 136 

how  inscribed 136 

penalty  for  injuring 136 

highway  labor  upon  line  of  road 150 

adjoining  owner  may  be  assessed  for  labor  thereon,  when.  150 

course  of  proceeding  necessary 150 

director,  to  whom  list  delivered,  to  be  vested  with  duties 

and  powers  of  overseer 150 

highway  commissioner  to  deliver  list  to  one  of  directors.  150 

person  assessed  may  commute 150 

terms  of 150 

highways •  122 

agreement  to  use «...  122 

consent  of  two-thirds  of  adjoining  owners  necessary.  122 

made  with  what  officers 122 

recorded  and  filed,  where 122 

condemnation 122 

payment  of  compensation 122 

to  be  made  to  whom 122 

to  be  used,  how 1 22 

hoist-gates,  not  to  be  erected  on  road 136 

incorporation  of,  how  effected 120 

certificate  of »  120 

contain  what 120 

indorsement  thereon 120 

65 


INDEX. 

BBC 

Tnrnpike,  incorporation  of,  number  of  persons  required 120 

purposes  stated 120 

proof  of 146 

parol  proof,  when  sufficient 146 

title  to  road  duly  set  up  by  opposing  party  requires  other 

proof 146 

inspectors,  to  order  removal  of  encroachment,  when 142 

inspectors 134 

duties  of 134 

to  examine  road  within  district  once  a  month 184 

part  of  road  on  complaint 134 

to  give  written  notice  to  gate  attendant  of  want  of 

repair 134 

to  which  attendant 134 

what  notice  to  contain 134 

to  order  gate,  if  default  in  repairing,  to  be  thrown 

open 134 

]  fees  of 134 

by  whom  paid 134 

penalty  for  neglect  of  duty 134 

powers  of 134 

who  to  be 134 

iron  rails  may  be  laid  on  its  road 127 

for  what  vehicles •. 127 

what  motive  power  used  thereon 127 

liability  of  company  for  acts  of  its  toll-gatherers 131 

after  judgment  against    him  and  return  of  execution 

nulla  boua 131 

limitation  of  actions  for  penalty 145 

location  of  gates 133 

See  GATES,  LOCATION  OF. 

location  of  road ....  121 

restrictions  upon 121 

when  not  through  buildings 121 

garden 121 

orchard 121 

yard,  etc ...  121 

without  consent  of  owner 121 

mile-stone  to  be  erected  and  maintained 136 

each  mile  of  road 136 

marked  plainly  with  distance 136 

also  with  continuance  of  preceding  road 136 

penalty  for  injury 136 

name  of,  on  consolidation,  may  be  changed 138 

how  effected J38 

notice  may  be  maintained  at  end  of  bridge 143 

in  what  cases 143 

size 143 

to  contain  what 143 

of  application  to  board  of  supervisors  to  be  published. . .  123 

contain  what 123 

66 


INDEX. 

AM 
Turnpike,  notice  may  be  maintained  at  end  of  bridge,  for  what 

length  of  time 123 

in  what  newspaper 123 

office,  change  of  location 137 

how  effected   „ 137 

notice  to  contain  what 137 

when  and  where  published 137 

where  filed i 137 

location  of 137 

must  designate  some  place 137 

when 137 

where , 137 

public  notice  thereof  must  be  published. , 137 

how  long 137 

where 137 

where  filed 137 

officers  of,  after  dissolution  or  purchasing  plankroad 126 

how  chosen 126 

number  of 126 

owner  of  land  incapable  of  selling 125 

when  name  and  residence  cannot  be  ascertained 125 

who  cannot  agree  for  sale 125 

owning  road  on  or  adjoining  plankroad ,  126 

when  may  abandon  such  portion  of  road 126 

payment  for  land,  on  dissolution,  must  be  made  by  town,  when.  149 

penalty,  actions  for 145 

limitation  of , . .  145 

for  injuring  mile-stone,  guide-post,  or  road 136 

for  injuring  road,  etc.,  by  diverting  stream,  etc 141 

by  drawing,  etc.,  logs,  etc.,  thereon 141 

by  obstructing,  etc 141 

amount  of 141 

for  refusal  or  neglect  to  remove  encroachment  after  no- 
tice from  inspectors 142 

for  riding  or  driving  over  bridge  after  notice 143 

amount  of 143 

for  running  gate 132 

for  unauthorized  act  of  toll-gatherers 131 

imposed    on   company  for    disobedience   of  inspectors 

order 143 

imposed  on  gate  keeper 134 

for  disobedience  of  inspectors'  order 134 

for  hindering  or  delaying  person  in  passing 134 

for  taking  tolls,  when  gate  to  be  open 134 

possession  of  and  title  to  real  estate 125 

by  condemnation,  when 125 

how  acquired,  when  owner  incapable  of  selling 125 

when  name  or  residence  cannot  be  ascertained 125 

powers  of  toll-gatherers 131 

proof  of  incorporation ••••  146 

See  INCORPORATION",  PROOF  OP. 
67 


INDEX. 

BML 

Turnpike,  public  highway,  when  road  to  become  .. 148 

reversion  of  road  and  property  on  surrender 139 

tc  svhom 139 

running  gate,  penalty  for 132 

sale  of  property  and  franchise 138 

effect  of 138 

how  effected 138 

to  what  company 138 

service  of  papers  on  company 137 

between  what  hours 137 

how  made 137 

not  on  Sunday  or  legal  holiday 137 

upon  what  person 137 

stock,  company  may  sell  to  plank  road,  when 126 

held,  after  sale,  for  whose  benefit 126 

in  what  proportion 126 

transfer  of  stock  so  acquired 126 

transferee,  righ  ts  of 126 

stockholders  of,  after  dissolution  of  purchasing  plankroad. .  126 

stock,  how  deemed  divided 126 

scrip  to  be  issued  therefor 126 

surrender 139 

consent,  in  writing  of  stockholders 139 

declaration  in  writing ." 139 

both  to  be  filed 139 

how  attested  and  acknowledged 139 

where  filed 139 

effect  of 139 

iurvey  and  description  to  be  signed,  acknowledged  and  re- 
corded    124 

by  whom .- 124 

in  what  office 124 

to  be  separate  as  to  portion  in  each  county 124 

taxation,  exemption  from 140 

what  is  exempt 140 

until  what  time 140 

toll-gatherers 131 

appointment  of 131 

duties  of 131 

liability  of  company  for 131 

penalty  for  unauthorized  act 131 

powers  of 131 

toll,  rate  of 130 

how  fixed 130 

list  to  be  posted 130 

may  be  commuted 130 

by  whom 130 

for  what  length  of  time 130 

on  divergent  road  striking  turnpike  near  gate 130 

who  exempted  from   130 

Dersoiis  attending  as  juror 130 

68 


INDEX. 

810. 

Turnpike,  toll,  rate  of,  who  exempted  from  : 

persona  attending  as  witnesses 130 

election 130 

funeral 130 

school  meeting 13t) 

town  meeting 130 

worship  130 

living  within  one  mile 130 

working  on  highway 130 

troops  in  actual  service 130 

town  must  pay  for  lands  not  originally  a  highway,  when.. .  149 

in  case  of  judgment  of  ouster  or  dissolution 149 

termination  by  limitation  of  time 140 

payment,  amount  of 149 

made  to  whom,  when 349 

provision  therefor  in  judgment 149 

release  and  conveyance  to  be  executed 149 

use  of  turnpike  road  by  plank  road 126 

not  without  its  consent 126 

unless  to  cross  same 126 

Waterworks 80-85 

amended  certificate,  when  it  may  be  filed 85 

contents 85 

effect 85 

canal  and  canal  reservoirs,  no  water  to  be  taken  from. ......  84 

condemnation  of  real  property 84 

for  what  purposes 84 

in  what  case 84 

contract  with  other  towns  or  villages 85 

can  be  made,  when 85 

company  must  file  amended  certificate 85 

what  it  must  contain o .......  85 

incorporation  of 80 

certificate  of 80 

what  to  contain 80 

permit  of  municipal  authorities 80 

who  must  execute  it 80 

proof  of  subscription  and  payment  of  capital  stock 80 

must  supply  water 81 

to  all  consumers 81 

powers  of 82 

additional 82 

defined 81 

rights  of,  defined 84 

streams  used  to  supply  canals,  no  water  to  be  taken  from. ...  84 

village  authorities  have  power  to  contract • 81 

for  what  purposes 8-1 

limitation  of  contract „ 81 

payment,  how  made 81 

term  of  contract,  how  extended 81 

to  what  extent 81 

69 


CONDEMNATION  OF  REAL  PBOPERTI 


SALE  OF  CORPORATE  REAL  PROPERTY. 


3STOTES    -A.2STID 

CHAJP.  95  of  189O. 

CODE  OF  CIVIL  PROCEDURE. 
CHAPTER  XXIII. 

SUPPLEMENTAL  PROVISIONS. 

TITLE     I.  PROCEEDINGS  FOR  THE  CONDEMNATION  OF  REAL  PROPERTY. 
TITLE  II.  PROCEEDINGS  FOR  THE  SALE  OF  CORPORATE  REAL  PROPERTY. 

TITLE  I. 

PROCEEDINGS  FOR  THE  CONDEMNATION  OF  REAL  PROPERTY. 

SECTION  3357.  Title. 

3358.  Terms  defined. 

3359.  When  proceedings  prescribed  in  this  title  to  be  taken. 

3360.  Proceedings  to  be  commenced  by  petition;  what  to  contain. 

3361.  Notice  to  be  annexed  to  petition  ;  upon  whom  served. 

3362.  Petition  and  notice  ;  how  served. 

3363.  Appearance  of  defendant  infant,  idiot,  lunatic  or  habitual  drunkard. 

3364.  Appearance  of  parties. 

3365.  Answer  ;  what  to  contain. 

3366.  Petition  or  answer  must  be  verified 

3367.  Trial  of  issues. 

3368.  Certain  provisions  made  applicable. 

3369.  Judgment  what  to  contain  ;  costs  when  to  defendant ;  commissioners. 

3370.  Proceedings  of  commissioners. 

3371.  Confirming  or  setting  aside  report;  deposit  when  payment. 

3372.  Offer  to  compromise  ;  amount  of  costs  ;  additional  allowance. 

3373.  Judgment  how  enforced  ;    when  to  deliver  possession  of  premises 

and  when  writ  of  assistance  to  issue. 

3374.  Abandonment  of  proceeding. 

3375.  Appeal  from  final  order;  stay. 
337(5.   Appeal  from  judgment  by  plaintiff. 
337^.  New  appraisal ;  when. 

3378.  Conflicting  claimants. 

3379.  Possession  of  property  on  giving  security. 


SUPPLEMENTAL  PROVISIONS. 

3380.  When  possession  of  real  property  given  immediately. 

3381.  Notice  of  pendency  of  action  to  be  filed. 

3382.  Practice  in  cases  not  provided  for. 

3383.  Repealing  clause. 

3384.  When  act  to  take  effect. 

§  3357.  Title. —  This  title  shall  be  known  as  the  condemnation  law. 

§  3358.  Terms  defined. — The  term  "  person,"  when  used  herein, 
includes  a  natural  person  and  also  a  corporation,  joint-stock  association, 
the  state  and  a  political  division  thereof,  and  any  commission,  board, 
board  of  managers  or  trustees  in  charge  or  having  control  of  any  of  the 
charitable  or  other  institutions  of  the  state ;  the  term  "  real  property," 
any  right,  interest  or  easement  therein  or  appurtenances  thereto ;  and 
the  term  "  owner,"  all  persons  having  any  estate,  interest  or  easement 
in  the  property  to  be  taken,  or  any  lien,  charge  or  incumbrance  thereon. 
The  person  instituting  the  proceedings  shall  be  termed  the  plaintiff ; 
and  the  person  against  whom  the  proceeding  is  brought,  the  defendant- 
fAm'd  by  ch.  589  of  1896.  In  effect  May  12,  1896.J 

The  right  of  a  mill  owner  to  use  the  waters  of  a  stream  as  a  propelling  power  at 
his  mill,  is  an  incorporeal  hereditament  connected  with  the  land  and  may  be 
acquired  by  a  water-works  company.  Stamford  Water  Co.  1).  Stanley,  39  Hun,  424. 

§  3359.  When  proceedings  prescribed  in  this  title  to  be 
taken. —  Whenever  any  person  is  authorized  to  acquire  title  to  real 
property,  for  a  public  use  by  condemnation  the  proceedings  for  that 
purpose  shall  be  taken  in  the  manner  prescribed  in  this  title. 

The  propriety  of  taking  private  property  for  a  public  use,  is  not  a  judicial 
question,  but  one  of  political  sovereignty,  to  be  determined  by  the  legislature, 
either  directly  or  by  delegating  the  power  to  public  agents,  proceeding  in  such 
a  manner  and  form  as  it  may  prescribe.  People  ex  rel.  Herrick  ?>.  Smith,  21  N. 
Y.,  595. 

Neither  a  private  or  municipal  corporation  can  under  a  general  power  to  take 
lands  for  a  public  use,  take  from  another  corporation  having  the  like  power,  lands 
or  property  held  by  it  for  a  public  purpose  pursuant  to  its  charter.  Matter  of 
Rochester  Water  Commissioners,  66  N.  Y.,  413.  See  also,  to  same  effect,  Prospect 
Park  &  C.  I.  R.  R.  Co.  v.  Williamson,  91  N.  Y.  552. 

Statutes  delegating  the  right  of  eminent  domain  to  railroad  and  other  corpora- 
tions, being  in  derogation  of  common  right,  are  not  to  be  extended  by  implication, 
and  must  be  strictly  complied  with.  Yet  they  are  not  to  be  construed  so  literally, 
as  to  defeat  the  evident  purposes  of  the  legislature.  N.  Y.  &H.  R.  R.  Co.  v.  Kip< 
46  N.  Y.,  546. 

§  3360.  Proceedings  to  be  commenced  by  petition ;  what  to 
contain. — The  proceeding  shall  be  instituted  by  the  presentation  of  a 
petition  by  the  plaintiff  to  the  supreme  court  setting  forth  the  follow 
ing  facts : 

1.  His  name,  place  of  residence,  and  the  business  in  which  engaged ; 
if  a  corporation  or  joint-stock  association,  whether  foreign  or  domestic, 
its  principal  place  of  business  within  the  state,  the  names  and  places 
of  residence  of  its  principal  officers,  and  of  its  directors,  trustees  or 
board  of  managers,  as  the  case  may  be,  and  the  object  or  purpose  of 
its  incorporation  or  association ;  if  a  political  division  of  the  state,  the 
names  and  places  of  residence  of  its  principal  officers ;  and  if  the  state 

2 


SUPPLEMENTAL  PROVISIONS. 

or  any  commission  or  board  of  managers  or  trustees  in  charge  or  having 
control  of  any  of  the  charitable  or  other  institutions  of  the  state,  the 
name,  place  of  residence  of  the  officer  acting  in  its  or  their  behalf  in 
the  proceedings.  [Am'd  by  ch.  589  of  1896.  In  effect  May  12, 1896.] 

2.  A  specific  description  of  the  property  to  be  condemned  and  its 
location,  by  metes  and  bounds,  with  reasonable  certainty. 

3.  The  public  u^e  for  which  the  property  is  required  and  a  concise 
statement  of  the  facts  showing  the  necessity  of  its  acquisition  for  such 
use. 

4.  The  names  and  places  of  residence  of  the  owners  of  the  property  ; 
if  an  infant,  the  name  and  place  of  residence  of  his  general  guardian, 
if  he  has  one ,  if  not,  the  name  and  place  of  residence  of  the  person 
with   whom  he  resides ;  if  a  lunatic,  idiot,  or  habitual  drunkard,  the 
name  and  place  of  residence  of  his  committee  or  trustee,  if  he  has  one ; 
if  not,  the  name  and  place  of  residence  of  the  person  with  whom  he 
resides.     If  a  non-resident,  having  an  agent  or  attorney  residing  in 
the  state  authorized  to  contract  for  the  sale  of  the  property,  the  name 
and  place  of  residence  of  such  agent  or  attorney  ;  if  the  name  or  place 
of  residence  of  any  owner  can  not  after  diligent  inquiry  be  ascertained, 
it  may  be  so  stated  with  a  specific  statement  of  the  extent  of  the  inquiry 
which  has  been  made. 

5.  That  the  plaintiff  has  been  unable  to  agree  with  the  owner  of  the 
property  for  its  purchase  and  the  reason  of  such  inability. 

6.  The  value  of  the  property  to  be  condemned. 

7.  A  statement  that  it  is  the  intention  of  the  plaintiff,  in  good  faith, 
to  complete  the  work  or  improvement,  for  which  the  property  is  to  be 
condemned  ;  arid  that  all  the  preliminary  steps  required  by  law  have 
been  taken  to  entitle  him  to  institue  the  proceeding. 

8.  A  demand  for  relief,  that  it  may  be  adjudged  that  the  public  use 
requires  the  condemnation  of  the  real  property  described,  and  that  the 
plaintiff  is  entitled  to  take  and  hold  such  property  for  the  public  use 
specified,  upon  making  compensation  therefor,  and  that  commissioners 
of  appraisal  be  appointed  to  ascertain  the  compensation  to  be  made  to 
the  owners  for  the  property  so  taken. 

When  private  property  is  to  be  taken  for  public  purposes,  facts  necessary  to 
give  the  court  or  officer  jui-isdiction  must  appear  in  the  petition,  for  it  is  upon  that 
alone  that  jurisdiction  depends.  Matter  of  Marsh,  71  N.  Y.,  315  ;  rev'g  10  Hun,  49. 

The  supreme  court  has  the  power  to  entertain  a  proceeding  on  the  petition  of  a 
railway,  to  condemn  lands  of  the  state  under  water.  Matter  of  N.  Y.  Cable  Co., 
104  N.  Y.,  1,  43. 

It  is  no  objection  to  proceedings  under  the  act  that  there  are  other  lands  in  the 
same  vicinity  equally  well  adapted  for  the  purposes  which  possibly  might  be 
acquired  by  purchase'.  N.  Y  &  H.  R.  R.  Co.  v.  Kip,  46  N.  Y.,  546. 

The  reasons  of  the  inability  to  agree  must  he  stated,  that  the  court  may 
determine  their  sufficiency,  and  als=o  that.  th«  owner  of  the  land  may  negative  or 
disprove  them,  as  the  reasons  why  asrrppmpnt,  ran  not  be  had  may  be  various,  and 
a  petition  which  fails  to  state  the  reasons  for  disagreement  is  defective.  Matter 
of  Marsh,  71  N.  Y.,  316. 

The  exercise  of  the  power  being  in  derogation  of  individual  right,  allowed  only 


SUPPLEMENTAL   PROVISIONS. 

when  the  necessity  clearly  appears,  and  the  proposed  use  is  clearly  embraced 
within  the  legitimate  objects  of  the  power.  In  re  Staten  Island  Rapid  Transit  Co., 
lu.i  N.  Y.,  251. 

A  defective  description  can  not  be  remedied  by  reference  to  a  desciption  in  a 
deed.  Extreme  accuracy  is  essential  for  the  protection  of  the  rights  of  all  the 
parties,  and  a  failure  to  comply  with  the  statute  must  lead  to  difficulty  and 
embarrassment.  Matter  of  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  70  N.  Y.,  191. 

In  Matter  of  Suburban  Rapid  Transit  Co.,  38  Hun,  553,  it  was  held,  that  the 
court  had  power  to  amend  a  defect  in  the  petition  by  proof  presented  upon  the 
hearing. 

One  petition  to  acquire  the  land  of  several  owners  is  but  one  proceeding,  and 
requires  one  appeal  and  one  allowance  of  costs.  Matter  of  Prospect  Park,  etc.,  R.  R. 
Co.,  67  N.  Y.,  371 ;  affirming  8  Hun,  30. 

.  In  order  to  sustain  proceedings  by  which  a  body  corporate  claims  the  power  to 
exercise  the  right  of  eminent  domain,  it  is  not  sufficient  that  it  be  a  corporation 
de  facto.  It  must  be  a  corporation  de  jure.  Matter  of  N.  Y.  Cable  Co.,  104 
N.  Y.,  1,  43. 

If  the  petition  does  not  show  the  facts  required  by  statute  to  be  stated,  the 
objection  may  be  disposed  of  before  trial.  Matter  of  N.  Y.  W.  S.  &  B.  R.  R.  Co., 
64  How.,  217. 

Owner  intitled  to  notice  and  hearing.     Stuart  v.  Palmer,   74  N.  Y.,  183. 

§3361.  Notice  to  be  annexed  to  petition;  upon  •whom, 
served. — There  must  be  annexed  to  the  petition  a  notice  of  the  time 
and  place  at  which  it  will  be  presented  to  a  special  term  of  the 
supreme  court,  held  in  the  judicial  district  where  the  property  or  some 
portion  of  it  is  situated,  and  a  copy  of  the  petition  and  notice  must  be 
served  upon  all  the  owners  of  the  property  at  least  eight  days  prior  to 
its  presentation. 

All  notices  and  hearings  that  may  tend  to  give  the  party  to  be  affected  any 
semblance  of  benefit  must  be  carefully  observed.  People  v.  Kniskern,  54  N.  Y  , 
52. 

§  3362.  Petition  and  notice ;  how  served. — Service  of  the  peti- 
tion and  notice  must  be  made  in  the  same  manner  as  the  service  of  a 
summon  in  an  action  in  the  supreme  court  is  required  to  be  made,  and 
all  the  provisions  of  articles  one  and  two  of  title  one  of  chapter  five  of 
this  act,  which  relate  to  the  service  of  a  summons,  either  personally  or 
in  any  other  way,  and  the  mode  of  proving  service,  shall  apply  to  the 
service  of  the  petition  and  notice.  If  the  defendant  has  an  agent  or 
attorney  residing  in  this  state,  authorized  to  contract  for  the  sale  of  the 
real  property  described  in  the  petition,  service  upon  such  agent  or 
attorney  will  be  sufficient  service  upon  such  defendant.  In  case  the 
defendant  is  an  infant  of  the  age  of  fourteen  years  or  upwards,  a  copy 
of  the  petition  and  notice  shall  also  be  seived  upon  his  general 
guardian,  if  he  has  one  ;  if  not,  upon  the  person  with  whom  he  resides. 

S  3363.  Appearance  of  defendant  infant,  idiot,  lunatic  or 
habitual  drunkard. —  If  a  defendant  is  an  infant,  idiot,  lunatic  or 
habitual  drunkard,  it  shall  be  the  duty  of  his  general  guardian,  com- 
mittee or  trustee,  if  he  has  one,  to  appear  for  him  upon  the  presenta- 
tion of  the  petition  and  attend  to  his  interests,  and  in  case  he  has 
none,  or  in  case  his  general  guardian,  committee  or  trustee  fails  to 

4 


SUPPLEMENTAL  PROVISIONS. 

appear  for  him,  the  court  shall,  upon  the  presentation  of  the  petition 
and  notice,  with  proof  of  service,  without  further  notice,  appoint  a 
guardian  ad  litem  for  such  defendant,  whose  duty  it  shall  be  to  appear 
for  him  and  attend  to  his  interests  in  the  proceeding,  and,  if  deemed 
necessary  to  protect  his  rights,  the  court  may  require  a  general  guar- 
dian, committee  or  trustee,  or  a  guardian  ad  litem  to  give  security  in 
such  sum  and  with  such  sureties  as  the  court  may  approve.  If  a  ser- 
vice other  than  personal  has  been  made  upon  any  defendant  and  he 
does  not  appear  upon  the  presentation  of  the  petition,  the  court  shall 
appoint  some  competent  attorney  to  appear  for  him  and  attend  to  his 
interests  in  the  proceeding. 

§  3364.  Appearance  of  parties. —  The  provisions  of  law  and  of  the 

rules  and  practice  of  the  court,  relating  to  the  appearance  of  parties 
in  person  or  by  attorney  in  actions  in  the  supreme  court,  shall  apply 
to  the  proceeding  from  and  after  the  service  of  the  petition,  and  all 
subsequent  orders,  notices  and  papers  may  be  served  upon  the  attorney 
appearing  and  upon  a  guardian  ad  litem  in  the  same  manner  and  with 
the  same  effect  as  the  service  of  papers  in  an  action  in  the  supreme 
court  may  be  made. 

A  party,  by  putting  in  a  general  appearance  and  proceeding  without  objection 
submits  himself  to  the  jurisdiction  of  the  court,  and  can  not  afterward  raise  objec- 
tion to  the  sufficiency  of  the  verification  to  the  petition.  Lackawanna,  etc.,  R.  R. 
Co.  v.  Scheu,  33  Hun,  148. 

If  the  petition  does  not  state  the  facts  required  in  the  petition  to  be  stated,  an 
objection  in  that  regard  can  be  raised  preliminarily  in  effect  by  way  of  demurrer, 
and  should  be  disposed  of  before  proceeding  to  the  merits.  Matter  of  N.  Y.,  W. 
8.  &  B.  R.  R.  Co.,  64  How.,  217. 

The  appearance  of  an  attorney  for  the  land  owner,  when  a  petition  for  the 
appointment  of  commissioners  is  brought  on  for  hearing,  gives  jurisdiction,  and 
flures  an  omission  from  the  petition,  such  as  the  omission  to  state  the  residence  of 
owners.  Matter  of  Rochester,  Hornellsville,  etc.,  Ry.  Co.,  19  Abb.  N.  C.,  421. 

§  3365.  Answer  ;  what  to  contain. —  Upon  presentation  of  the 
petition  and  notice  with  proof  of  service  thereof,  an  owner  of  the 
property  may  appear  and  interpose  an  answer,  which  must,  contain  a 
general  or  specific  denial  of  each  material  allegation  of  the  petition 
controverted  by  him,  or  of  any  knowledge  or  information  thereof 
sufficient  to  form  a  belief,  or  a  statement  of  new  matter  constituting  a 
defense  to  the  proceeding. 

If  by  non-performance  of  a  condition  of  its  charter,  the  corporation  has  forfeited 
or  lost  its  corporate  rights  and  powers  the  fact  may  be  averred  by  any  one  whose 
land  or  property  is  sought  to  be  appropriated  in  answer  to  the  application.  Matter 
Of  Brooklyn,  etc.,  R.  R.  Co.,  72  N.  Y.,  245. 

It  is  well  settled  in  this  state,  that  the  mere  fact  that  the  land  proposed  to  be 
taken  for  a  public  use  is  not  needed  for  the  present  and  immediate  purpose  of  the 
petitioning  party,  is  not  necessarily  a  defense  to  a  proceeding  to  condemn  it. 
Matter  of  Staten  Island  Rapid  Transit  Co.,  103  N.  Y.,  251. 

§  3366.  Petition  or  answer  must  be  verified. —  A  petition  or 
Answer  must  be  verified,  and  the  provisions  of  this  act  relating  to  th« 

5 


SUPPLEMENTAL   PROVISIONS. 

form  and  contents  of  the  verification  of  pleadings  in  courts  of  record, 
and  the  persons  by  whom  it  may  be  made,  shall  apply  to  the 
verification. 

§  3367.  Trial  of  issues. — The  court  shall  try  any  issue  -raised  by 
the  petitiuii  and  answer  at  such  time  and  place  as  it  may  direct,  or  it 
may  order  the  same  to  be  referred  to  a  referee  to  hear  and  determine, 
and  upon  such  trial  the  court  or  referee  shall  rile  a  decision  in  writing, 
or  del  ver  the  same  to  the  attorney  for  the  prevailing  party,  within 
twenty  days  after  the  final  submission  of  the  proofs  and  allegations  of 
the  parties,  and  the  provisions  of  this  act  relating  to  the  form  and 
contents  of  decisions  upon  the  trial  of  issues  of  fact  by  the  court  or  a 
referee,  and  to  making  and  filing  exceptions  thereto,  and  the  making 
and  settlement  of  a  case  for  the  review  thereof  upon  appeal,  and  to  the 
proceedings  which  may  be  had,  in  case  such  decision  is  not  filed  or 
delivered  within  the  time  herein  required,  and  to  the  powers  of  the 
court  and  referee  upon  such  trial,  shall  be  applicable  to  a  trial  and 
decision  under  this  title. 

A  denial  of  the  intention  of  a  railroad  company  to,  in  good  faith,  construct  and 
finish  its  road,  made  by  the  owner  of  the  property  sought  to  be- taken,  raises  an 
issue  for  trial  before  commissioners  can  be  appointed,  and  puts  the  burden  of 
proof  upon  the  company.  'Matter  of  Staten  Island  Rapid  Transit  R.  R.,  20  Week, 
Dig.,  15. 

§  3368.  Certain  provisions  made  applicable. — The  provisions  of 
title  one  of  chapter  eight  of  this  act  shall  also  apply  to  proceedings  had 
under  this  title. 

§  33W.  Judgment-  -what  to  contain;  costs  when  to  defend. 
ant — commissions.  —  Judgment  shall  be  entered  pursuant  to  the 
direction  of  ihe  court  or  referee  in  the  decision  filed.  If  in  favor  of 
the  defendant  the  petition  shall  be  -dismissed,  with  costs  to  be  taxed 
by  tbe  clerk  at  the  same  rates  as  are  allowed,  of  course,  to  a  defend- 
ant prevailing  in  an  action  in  the  supreme  court,  including  the  allow- 
ances lor  proceedings  before  and  after  notice  of  trial.  If  the  decision 
i.s  in  favor  of  the  plaintiff,  or  if  no  answer  has  bef  n  interposed  and  it 
appears  from  the  petition  that  he  is  entitled  to  the  relief  demanded, 
judgment  shall  be  entered,  adjudging  that  the  condemnation  of  the 
i-'-al  property  described  is  necessary  for  the  public  use,  and  that  the 
plaintiff  is  c'ntitled  to  take  and  hold  the  property  for  the  public  use 
specified,  upon  making  compensation  therefor,  and  the  court  shall 
thereupon  appoint  three  disinterested  and  competent  freeholders, 
residents  of  the  judicial  district  embracing  the  county  where  the  real 
property,  or  some  part  of  it,  is  situated,  or  of  some  county  adjoining 
such  judicial  district,  commissioners  to  ascertain  the  compensation  to 
be  made  to  the  owners  for  the  property  to  be  taken  for  the  public  use 
specified,  and  fix  the  time  and  place  for  the  first  meeting  of  the  com- 
missioners. Provided,  however,  that  in  any  such  proceeding  insti- 
tuted within  the  first  or  second  judicial  district,  such  commissioners 
shall  be  residents  of  the  county  where  the  real  property,  or  some  part 
of  it,  is  situated,  or  of  some  adjoining  county.  If  a  trial  has  bcrn 
had,  at  least  eight  days'  notice  ol  such  appointment  must  be  given  to 
all  the  defendants  who  have  appeared.  The  parties  may  waive,  itf 

6 


SUPPLEMENTAL  PROVISIONS.' 

writing,  the  provisions  of  this  section  as  to  the  residence  of  the  com- 
missioners, and  in  that  case  they  may  be  residents  of  any  county  in 
the  Stale.  Where  owners  of  separate  properties  are  joined  in  the  same 
proceeding,  or  separate  properties  of  the  same  owner  are  to  be  con- 
demned, more  than  one  set  of  commissioners  may  be  appointed. 
Am'd  by  chap.  530  of  1895.  Took  effect  May  3,  1895. 

Inability  to  procure  the  assent  of  the  landholders  is  the  only  prerequisite  under 
the  statute  to  the  appointment  of  commissioners.  An  application  for  the  appoint- 
ment of  commissioners  should  not  be  denied  because  other  companies  having 
coincident  routes  have  refused  their  consent.  Matter  of  Thirty- fourth  Street  R. 
R.  Co.,  102  N.  Y.,  343. 

Where  commissioners  were  appointed  on  consent  of  parties,  and  it  subsequently 
appeared  one  of  them  was  not  a  freeholder,  it  was  held  that,  in  the  absence  of 
allegations  of  improper  conduct  on  his  part,  the  court  properly  denied  a  motion, 
made  by  one  of  the  parties  who  had  consented  to  his  appointment,  to  have  the 
report  set  aside  and  a  new  commissioner  appointed.  N.  Y.,  W.  8.  &  B.  R.  R.  Co., 
35  Hun,  575. 

The  appointment  of  a  son  of  a  commissioner  a  station  agent  by  the  company 
pending  the  proceedings  is  ground  for  setting  aside  an  appraisal.  N.  Y.,  W.  S.  & 
B.  R.  R.  Co.  v.  Townsend,  36  Hun,  630. 

§  3370.  Proceedings  of  commissioners. —  The  commissioners 
shall  take  and  subscribe  the  constitutional  oath  of  office.  Any  of 
them  may  issue  subpoenas  and  administer  oaths  to  witnesses ;  a 
majority  of  them  may  adjourn  the  proceedings  before  them,  from 
•time  to  time  in  their  discretion.  Whenever  they  meet,  exceut  by 
appointment  of  the  court  or  pursuant  to  adjournment,  they  shall 
cause  at  least  eight  days'  notice  of  such  meeting  to  be  given  to  the 
defendants  who  have  appeared,  or  their  agents  or  attorneys.  They 
shall  view  the  premises  described  in  the  petition,  and  hear  the  proof 
and  a  legations  of  the  parties,  and  reduce  the  testimony  taken  by 
them,  if  any,  to  writing,  and  after  the  testimony  in  each  case  is  closed, 
they,  or  a  majority  of  them,  all  being  present,  shall,  without  unneces- 
sary delay  ascertain  and  determine  the  compensation  which  ought 
justly  to  be  made  by  the  plaintiff  to  the  owners  of  the  property  ap- 
praised by  them ;  and,  in  fixing  the  amount  of  such  compensation, 
they  shall  not  make  any  allowance  or  deduction  on  account  of  any 
real  or  supposed  benefits  which  the  owners  may  derive  from  the  pub- 
lic use  for  which  the  property  is  to  be  taken,  or  the  construction  of 
anv  proposed  improvement  connected  with  such  public  use.  But  in 
case  the  plaintiff  is  a  railroad  corporation  and  such  real  property 
shall  belong  to  any  other  railroad  corporation,  the  commissioners  on 
fixing  the  amount  of  such  compensation,  shall  fix  the  same  at  its 
fair  value  for  railroad  purposes.  They  shall  make  a  report  of  their 
proceedings  to  the  supreme  court  with  the  minutes  of  the  testimony 
taken  bv  them,  if  any  ;  and  they  shall  each  be  entitled  to  six  dollars 
for  services  for  every  day  they  are  actually  engaged  in  the  perform- 
ance of  their  duties,  and  their  necessary  expenses,  to  be  paid  by  the 
plaintiff;  provided,  that  in  proceedings  within  the  counties  of  New 
York  and  Kings  such  commissioners  shall  be  entitled  to  such  ad- 
ditional compensation  not  exceeding  twenty  five  dollars  for  every 
such  day,  as  may  be  awarded  by  the  court 

[Am'd'by  chap.  384  of  1898.] 

The  commissioners  have  no  power  to  make  any  awards  for  the  loss  of  an  estab- 
lished business  located  on  the  land  taken,  nor  for  the  machinery  thtreoii  a>  such, 
though  an  allowance  for  depreciation  of  its  value  by  removal  is  proper.  Matter 
of  Department  of  Public  Parks,  53  Hun,  280. 

7 


SUPPLEMENTAL   PROVISIONS. 

It  is  not  error  for  the  commissioners  to  receive  and  act  upon  testimony  as  to  the 
value  of  the  property  for  park  purposes  or  villa  sites.  Ib. 

The  corporation  acquires  an  absolute  right  to  the  lands  divested  of  any  inchoate 
right  of  dower  existing  in  the  wife.  Moore  v.  The  Mayor  of  New  York,  8  N. 
Y.,  110. 

The  commissioners  should  determine  the  compensation  to  be  made  to  a  widow 
who  has  dower  or  life  estate  in  lands  taken.  Matter  of  William  Street,  19  Wend., 
678,  and  also  the  compensation  to  be  made  to  the  mortgagee.  Matter  of  John 
Street,  ib.,  659. 

The  true  inquiry  is,  what  is  the  fair  marketable  value  of  the  whole  property  ; 
what  will  be  the  fair  marketable  value  of  the  property  not  taken.  The  difference 
is  the  amount  of  the  damages.  Matter  of  N.  Y.  &  W.  R.  R.  Co.,  27  Hun,  151.  ( 

An  appraisal  will  not  be  set  aside  as  excessive  unless  the  excess  is  plain  and 
palpable  on  the  evidence.  Matter  of  L.  &  W.  R.  R.  Co.,  27  Hun,  116. 

The  opinions  of  witnesses  that  the  railroads  will  frighten  horses,  or  the  necessity 
of  deviating  the  line  of  a  turnpike,  or  the  cost  of  diversion,  or  that  a  bridge  ought 
to  be  built,  or  the  amount  of  damages  a  turnpike  company  will  sustain  by  reason 
of  the  crossing  of  its  road,  are  said  to  be  inadmissible.  Troy  &  B.  R.  R.  Co.  «. 
Northern  Turnpike  Co.,  16  Barb.,  100. 

In  Trustees  of  College  Point  v.  Dennett,  5  T.  &  C.,  217,  it  was  held  upon  an  ap- 
praisal of  a  pond  that  the  measure  of  damages  was  not  limited  to  its  use  as  a  mill 
or  ice-pond,  but  the  owner  was  entitled  to  receive  its  value  for  any  use. 

The  commissioners  must  appraise  the  land  at  its  actual  value  ;  they  cannot  make 
a  reservation  of  easements  and  privileges  to  the  owner.  Hill  v.  M.  &  H.  R.  R. 
Co.,  7  N.  Y.,  152. 

But  see,  however,  Ex  parte  H.  C.  &  R.  R.  Co.,  65  How.,  133,  where  it  is  held 
that  a  company  may  petition  for  the  appraisement  only  of  the  land  required  for  ita 
road. 

It  is  competent  to  show,  where  land  is  taken  for  a  specific  use,  as  a  railroad, 
that  the  land  not  taken  is  depreciated  in  value  by  the  use  of  the  land  taken,  and 
if  that  depreciation  consists  in  the  imposition  of  expense  upon  the  owner  of  such 
lands,  what  that  expense  will  be.  Matter  of  Bloomfield,  etc.,  Gas  L.  Co.  v.  Calkins, 
1  T.  &  C.,  549. 

The  owner  should  be  awarded  the  market  price  of  the  land  already  taken,  and 
in  addition  thereto  the  depreciation  in  the  market  value  of  the  lands  remaining,  as 
compared  with  their  former  market  value.  Matter  of  N.  Y.,  W.  S.  &  B.  R.  R., 
29  Hun,  609;  to  the  same  effect.  Matter  of  N.  Y.,  W.  S.  &  B.  R.  R.  Co.,  35 
Hun,  260. 

It  is  the  duty  of  the  commissioners  to  hear  any  and  all  evidence  which  would  be 
competent  in  a  court  of  law  on  similar  questions.  Roch.  &  Syr.  R.  R.  Co.  v. 
Budlang,  6  How.,  467 

They  are  controlled  by  the  established  rules  of  evidence.  Troy  &  B.  R.  R.  Co. 
V.  Northern  Turnpike  Co.,  16  Barb.,  100  ;  to  the  same  effect,  Matter  of  Utica  &  C. 
R.  R.  Co.,  56  Barb.,  456. 

In  proceedings  by  a  railroad  corporation  to  acquire  a  right  to  lay  its  tracks  in  a 
street  or  highway,  the  fee  of  which  is  in  the  owner  of  the  adjoining  land,  the  proper 
compensation  is  first,  the  full  value  of  the  land  taken ;  second,  a  fair  and  adequate 
compensation  for  all  the  injury  the  owner  has  sustained  and  will  sustain  by  the 
making  of  the  road  over  his  land.  Henderson  v.  N.  Y.  C.  R.  R.  Co.,  78  N.  Y.,  423. 

The  amount  of  damages  to  be  awarded  to  the  tenant,  is  the  amount  which  the 
rental  value  exceeds  the  rent  reserved.  Matter  of  the  City  of  Buffalo,  1  Sheldon,  408. 

The  order  in  which  the  commissioners  shall  proceed  is  a  matter  left  entirely  in 
their  discretion.  Albany  Northern,  etc.,  R.  R.  Co.  v.  Lansing,  16  Barb.,  68. 

The  party  whose  land  is  taken  and  who  claims  damages  therefor,  has  the  right 
to  the  opening  and  closing  argument  in  the  pi-oceedings.  Matter  of  N.  Y.,  L.  &  W. 
R.  R.  Co.,  33  Hun,  148  ;  affirmed  without  opinion  98  N.  Y.  664. 

An  error  in  the  admission  of  evidence  is  not  cured  l»y  the  certificate  of  one  of  the 
commissioners  that  it  did  not  affect  the  report.  Matter  of  N.  Y.,  L.  &  W.  R.  R.  Co., 
29  Hun,  1. 

Errors  occurring  in  the  report  of  testimony  are  subject  -to  correction  by  such 
commissioners,  as  a  proper  judicial  function,  and  within  their  province  only. 
N.  Y.,  W.  S.  &  B.  R.  R.  Co.  v.  Judson.  33  Hun.  293. 

Loss  of  business  profits  and  good  will  are  not  substantial  grounds  for  damages, 
nor  are  they  to  be  considered  in  estimating  the  injury  caused  by  the  taking  of  land. 

8 


SUPPLEMENTAL   PROVISIONS. 

Troy  &  B.  R.  R.  Co.  v.  Northern  Turnpike  Co.,  16  Barb.,  100 ;  to  the  same  effect, 
N.  Y.,  W.  S.  &  B.  R.  R.  Co.  v.  Cosack,  35  Hun,  633. 

When  land  is  taken,  inconveniences  from  noise,  smoke,  etc.,  may  be  taken  into 
consideration  in  estimating1  depreciation  of  balance.  Brooklyn  Park  Com.  v. 
Armstrong,  45  N.  Y.,  234. 

In  estimating  the  damages  to  which  a  lessee  of  premises  used  for  a  basiness 
purpose  is  entitled,  the  commissioners  should  consider  the  injury  to  ihe  proper.y 
as  a  whole;  the  dLTerence  in  value  of  the  leasehold  interest  before  and  after  the 
land  is  taken;  but  the  willingness  of  the  lessor  to  lease  another  piece  of  land  sti  t- 
able  for  the  same  purpose  is  not  admissible.  N.  Y.,  W.  S.  &  B.  R.  R.  Co.  71.  Bell, 
28  Hun,  426. 

§  3371.  Confirming  cr  setting  aside  report ;  deposit  when 
payment. —  Upon  filing  the  report,  of  the  commissioners,  any  party 
may  move  for  its  confirmation  at  a  special  term,  held  in  the  district 
where  the  property  or  some  part  of  it  is  situated,  upon  notice  to  the 
other  parties  who  have  appeared,  and  upon  such  motion,  the  court 
may  confirm  the  report,  or  may  set  it  aside  for  irregularity,  or  for  error 
of  law  in  the  proceedings  before  the  commissioners,  or  upon  the  ground 
that  the  award  is  excessive  or  insufficient.  If  the  report  is  set  aside, 
the  court  may  direct  a  rcheaiiug  before  tho  same  commissioners,  or 
may  appoint  new  commissioners  for  that  purpose,  and  the  proceedings 
upon  such  rehearing  shall  be  conducted  in  the  manner  prescribed  for 
the  original  hearing,  and  the  same  proceedings  shall  be  had  for  the 
confirmation  of  the  second  report,  as  are  herein  prescribed  for  the  con- 
firmation of  the  first  report.  If  the  report  is  confirmed, the  court  shall 
enter  a  final  order  in  the  proceeding,  directing  that  compensation 
shall  be  made  to  the  owners  of  the  property,  pursuant  to  the  determi- 
nation of  the  commissioners,  and  that  upon  payment  of  such  compen- 
sation, the  plaintiff  shall  be  entitled  to  enter  into  the  possession  of  the 
property  condemned,  and  take  and  hold  it  for  the  public  use  speci- 
fied in  the  judgment.  Deposit  of  the  money  to  the  credit  of,  or  pay- 
able to  the  order  of  the  owner,  pursuant  to  the  direction  of  the  court, 
shall  be  deemed  a  payment  within  the  provisions  of  this  title. 

No  title  is  acquired  under  proceedings  to  condemn  lands  for  public  use  until  the 
confirmation  of  the  report  of  commissioners  appointed  to  assess  the  damages  for 
the  taking  thereof.  Matter  of  Common  Council  of  Brooklyn,  5  Hun,  175. 

It  is  too  late  to  raise  objections;  such  as,  the  petition  is  not  properly  verified,  or 
that  it  does  not  appear  by  the  petition  that  the  company  has  been  unable  to  agree 
with  the  owner  of  the  right  of  way  for  the  purchase,  etc.,  on  motion  for  con- 
firmation of  the  commissioner's  report.  N.  Y.  &  Erie  Ry.  Co.  v.  Corey,  5  How.,  177. 

The  supreme  court  will  not  set  aside  an  award  for  every  technical  error,  where 
no  injustice  appears  to  have  been  done.  N.  Y.  Central  R.  R.  R.  Co.  v.  Marvin,  11 
N.  Y.,  276  citing  Troy  &  Boston  R.  Co.  v.  N.  P.  Co.,  16  Barb.,  100. 

Th*1  court  will  not  disturb  an  appraisal  for  technical  errors,  or  unless  the  com- 
missioners have  clearly  gone  astray  and  disregarded  legal  principles.  Matter  of 
N.  Y..  L.  &  W.  R.  R.  Co.  v.  Arnott,  27  Hun,'l51 ;  to  the  same  effect  N.  Y.,  W.  S. 
&  B.  R.  R.  Co.  v.  Gennet,  37  Hun,  317. 

Where  the  petitioner  has  fairly  made  out  a  case  establishing  that  the  premises 
are  necessary  for  its  use,  and  the  company  has  acted  in  good  faith  and  exercised  a 
reasonable  discretion,  the  court  will  not  interfere.  N.  Y.,  L.  &  W.  R.  R.  Co.  v. 
Union  Steamboat  Co.,  35  Hun,  220. 

Where   the  commissioners  awarded  much  less   than  the  value  of  the  property 

9 


SUPPLEMENTAL   PROVISIONS. 

taken,  according  to  the  testimony  of  every  witness  put  upon  the  stand,  it  was  held 
an  arbitrary  exercise  of  power  not  justified  by  law.  N.  Y.,  W.  S.  &  B.  R.  Co.  v. 
Yates,  18  Week.  Dig.,  272. 

An  order  of  court  confirming  the  report  of  commissioners  of  appraisement  of 
damages  to  owners  for  lands  taken,  will  not  give  validity  to  proceedings  void  for 
want  of  jurisdiction.  Matter  of  Carlton  St.,  16  Hun,  497. 

In  caye  commissioners  have  filed  their  report,  their  power  of  amendment  is 
gone,  and  a  subsequent  report  has  1:0  validity.  People  ex  rel.  Mann  v.  Mott,  60 
N.  Y.,  6-10. 

The  commissioners,  upon  application  and  order  of  court,  may  amend  or  correct 
their  report  so  as  to  conform  it  to  the  state  of  facts  as  they  exist.  But  they  have 
no  right  at  the  time  of  such  correction  to  hear  proofs  by  claimants  as  to  damages. 
N.  Y.  &  Erie  R.  R.  Co.  v.  Corey,  5  How.,  177. 

Where  there  has  been  a  succession  of  appraisals  in  the  same  county,  one  report 
may  embrace  all  the  different  parcels.  Troy  &  Rutland  R.  R.  Co.  v.  Cleveland,  & 
How.,  238. 

The  report  may  be  report  may  be  set  aside  where  it  appears  that  the  commis- 
sioners had  talked  pi'ivately  with  a  person  from  whom  they  obtained  information 
discrediting  claimant's  testimony,  and  the  award  to  him  was  greatly  inadequate, 
and  that  his  neglect  to  oppose  the  confirmation  of  the  report  arose  from  neglect  or 
misconduct  of  his  attorney.  Matter  of  N.  Y.  C.  R.  R.  Co.,  5  Hun,  105  ;  to  the 
same  effect  Visscher  v.  H.  R.  R.  R.  Co.,  15  Barb.,  37. 

The  default  of  an  owner  upon  the  hearing  before  commissioner  may  be  excused 
by  the  supreme  court  on  motion  to  confirm  the  report,  and  the  report  set  aside  and 
a  new  hearing  directed.  Matter  of  N.  Y.  &  L.  R.  R.  Co.,  93  N.  Y.,  385. 

Upon  the  application  to  confirm  a  report,  a  commissioner  who  has  signed  such 
report  will  not  be  allowed  to  stultify  himself  by  an  affidavit  that  he  signed  it  with- 
out reading  it  or  hearing  it  read.  Rochester  &  Genesee  R.  R.  Co.  v.  Beckwith,  10 
How.,  168. 

The  court  must  act  solely  on  the  report  of  the  commissioners,  and  affidavits 
cannot  be  used  to  impeach  or  contradict  it.  The  report  must  show  that  an  error 
has  been  committed,  or  that  injustice  has  been  done,  to  enable  the  court  to  reverse 
or  set  aside  the  proceedings.  Rondout  &  Oswego  R.  R.  Co.  v.  Field,  38  How.,  187. 

Where  the  parties  have  agreed  as  to  the  principles  on  which  the  appraisal  is  to  be 
conducted,  the  court  can  not  interfere.  In  re  N.  Y.,  L.  &  W.  R.  R.  Co.,  102  N.  Y., 
704. 

The  right  of  the  mortgagee  of  lands  taken  in  condemnation  proceedings  to  the 
amount  of  awards  made  to  him  as  mortgagee,  is  not  taken  away  by  bis  taking 
judgment  in  foreclosure  without  any  abatement  on  account  of  the  awards.  Rodman 
v.  City  of  Buffalo,  15  N.  Y.  State  Rep.,  583. 

The  court  will  not  review  the  judgment  of  the  commissioners  upon  the  facts, 
except  in  cases  in  which  a  gross  inequality  of  values  is  developed,  or  the  appraisal 
is  made  upon  a  wrong  principle.  Matter  of  Mayor,  etc.,  of  N.  Y.,  99  N.  Y.,  569 
aff'g34  Hun,  441. 

§  3372.  Offer  to  compromise;    amount  of  costs;  additional 

allowance. — In  all  cases  where  the  owner  is  a  resident  and  not  under 
legal  disability  to  convey  title  to  real  property  the  plaintiff  before  ser- 
vice of  his  petition  and  notice,  may, make  a  written  offer  to  purchase 
the  property  at  a  specified  price,  which  must  within  ten  days 
thereafter  be  filed  in  the  office  of  the  clerk  of  the  county  where 
the  property  is  situated ;  and  which  can  not  be  given  in  evidence 
before  the  commissioners,  or  considered  by  them.  The  owner 
may  at  the  time  of  the  presentation  of  the  petition,  or  at  any  time  pre- 
'  viously,  serve  notice  in  writing  of  the  acceptance  of  plaintiff's  offer,  and 
thereupon  the  plaintiff  may,  upon  filing  the  petition,  with  proof  of  the 
making  of  the  offer  and  its  acceptance,  enter  an  order  that  upon  pay- 
ment of  the  compensation  agreed  upon,  he  may  enter  into  possession 

10 


SUPPLEMENTAL,   PROVISIONS. 

of  the  real  property  described  in  the  petition,  and  take  and  hold  it  for 
the  public  use  therein  specified.  If  the  offer  is  not  accepted,  and  the 
compensation  awarded  by  the  commissioners  does  not  exceed  the 
amount  of  the  offer  with  interest  from  the  time  it  was  made,  no  costs 
shall  be  allowed  to  either  party.  If  the  compensation  awarded  shall 
exceed  the  amount  of  the  offer  with  interest  from  the  time  it  was  made, 
or  if  no  offer  was  made,  the  court  shall,  in  the  final  order,  direct  that 
the  defendant  recover  of  the  plaintiff  the  costs  of  the  proceeding,  to  be 
taxed  by  the  clerk  at  the  same  rate  as  is  allowed,  of  course,  to  the  de- 
fendant when  he  is  the  prevailing  party  in  an  action  in  the  supreme 
court,  including  the  allowances  for  proceedings  before  and  after  notice 
of  trial  and  the  court  may  also  grant  an  additional  allowance  of  costs, 
not  exceeding  five  per  centum  upon  the  amount  awarded.  The  court 
shall  also  direct  in  the  final  order  what  sum  shall  be  paid  to  the  general 
or  special  guardian,  or  committee  or  trustee  of  an  infant,  idiot,  lunatic 
or  habitual  drunkard,  or  to  an  attorney  appointed  by  the  court  to  at- 
tend to  the  interests  of  any  defendant  upon  whom  other  than  personal 
service  of  the  petition  and  notice  may  have  been  made,  and  who  has 
not  appeared,  for  costs,  expenses  and  counsel  fees,  and  by  whom  or 
out  of  what  fund  the  same  shall  be  paid.  If  a  trial  has  been  had,  and 
all  the  issues  determined  in  favor  of  the  plaintiff',  costs  of  the  trial  shall 
not  be  allowed  to  the  defendant,  but  the  plaintiff  shall  recover  of  any 
defendant  answering  the  costs  of  such  trial  caused  by  the  interposition 
of  the  unsuccessful  defense,  to  be  taxed  by  the  clerk  at  the  same  rate 
as  is  allowed  to  the  prevailing  party  for  the  trial  of  an  action  in  the 
supreme  court. 

As  to  offer  to  purchase  property  at  a  specified  price  and  acceptance  of  same,  see 
sections  736  to  740,  Code  of  Civil  Procedure,  both  inclus:ve. 

§  3373.  Judgment,  how  enforced  ;  -when  to  deliver  possession 
of  premises,  and  -when  -writ  of  assistance  to  issue. —  Upon  the 
entry  of  the  final  order,  the  same  shall  be  attached  to  the  judgment 
roll  in  the  proceeding,  and  the  amount  directed  to  be  paid,  either  as 
compensation  to  the  owners,  or  for  the  costs  or  expenses  of  the  proceed- 
ing, shall  be  docketed  as  a  judgment  against  the  person  who  is 
directed  to  pay  the  same,  and  it  f^hall  have  all  the  force  and  effect  of 
a  money  judgment  in  an  action  in  the  supreme  court,  and  collection 
thereof  may  be  enforced  by  execution  and  by  the  same  proceedings  as 
judgments  for  the  recovery  of  money  in  the  supreme  court  may  be 
enforced  under  the  provisions  of  this  act.  When  payment  of  the  com- 
pensation awarded,  and  costs  of  the  proceeding,  if  any,  has  been  made, 
as  directed  in  the  final  order,  and  a  certified  copy  of  such  order  has 
been  served  upon  the  owTner,  he  shall,  upon  demand  of  the  plaintiff, 
deliver  possession  thereof  to  him,  and  in  case  possession  is  not 

11 


SUPPLEMENTAL  PROVISIONS. 

delivered  when  demanded,  the  plaintiff  may  apply  to  the  court  without  notice, 
unless  the  court  shall  require  notice  to  be  given,  upon  proof  of  such  payment  and 
of  service  of  the  copy  order,  and  of  the  demand  and  non-compliance  therewith, 
for  a  writ  of  assistance,  and  the  court  shall  thereupon  cause  such  writ  to  be  issued, 
which  shall  be  executed  in  the  same  manner  as  when  issued  in  other  cases  for  the 
delivery  of  possession  of  real  property. 

§  3374.  Abandonment  and  discontinuance  of  proceeding. —  Upon  the  applica- 
tion of  the  plaintiff  to  be  made  at  any  time  after  the  presentation  of  the  petition 
and  before  the  expiration  of  thirty  days  after  the  entry  of  the  final  order,  upon 
eight  days'  notice  of  motion  to  all  other  parties  to  the  proceeding  who  have 
appeared  therein  or  upon  an  order  to  show  cause,  the  court  may,  in  its  discre- 
tion, and  for  good  cause  shown,  authorize  and  direct  the  abandonment  and  dis- 
continuance of  the  proceeding,  upon  payment  of  the  fees  and  expenses,  if  any,  of 
the  commissioners,  and  the  costs  and  expenses  directed  to  be  paid  in  such  final 
order,  if  such  final  order  shall  have  been  entered,  and  upon  such  other  terms  and 
conditions  as  the  court  may  prescribe;  and  upon  the  entry  of  the  order  granting 
such  application  and  upon  compliance  with  the  terms  and  conditions  therein  pre- 
scribed, payment  of  the  amount  awarded  for  compensation,  if  such  compensation 
shall  have  bet-n  theretofore  awarded,  shall  not  be  enforced,  but  in  such  case,  if 
such  abandonment  and  discontinuance  of  the  proceeding  be  directed  upon  the 
application  of  the  plaintiff,  the  order  granting  such  application,  if  permitting  a 
renewal  of  such  proceedings,  shall  provide  that  proceedings  to  acquire  title  to 
such  lands  or  any  part  thereof  shall  not  be  renewed  by  the  plaintiff  without  a 
tender  or  deposit  in  court  of  the  amount  of  the  award  and  interest  thereon. 

Am'd  by  chap.  475  of  1894.     Took  effect  May.  3,  1894. 

A  public  body  or  public  officers  having  the  right  of  eminent  domain  for  public 
purposes  may  be  permitted  to  discontinue  proceedings  to  ac'quire  lands  at  any 
time  before  any  rights  have  become  vested  in  the  property  owners.  Matter  of 
Washington  Park,  56  N.  Y.,  144. 

The  confirmation  of  the  report  of  commissioners  prevents  the  abandoning  of  the 
proceedings.  Matter  of  Rhinebeck  &  Connecticut  R.  R.  Co.,  67  N.  Y.,  242. 

Until  the  confirmation  of  the  commissioners  appointed  to  assess  damages,  the 
court  may  allow  a  discontinuance  of  the  proceedings.  Ex  parte  N.  Y.,  Syracuse 
&  B.  R.  R.  Co.,  4  Hun,  311. 

§  3375.  Appeal  from  final  order  ;  stay. — Appeal  maybe  taken  to 
the  general  term  of  the  supreme  court  from  the  final  order,  within  the 
time  provided  for  appeals  from  orders  by  title  four  of  chapter  twelve 
of  this  act ;  and  all  the  provisions  of  such  chapter  relating  to  appeals 
to  the  general  term  from  orders  of  the  special  term  shall  apply  to  such 
appeals.  Such  appeal  will  bring  up  for  review  all  the  proceedings 
subsequent  to  the  judgment,  but  the  judgment  and  proceedings  ante- 
cedent thereto  may  be  reviewed  on  such  appeal,  if  the  appellant  states 
in  his  notice  that  the  same  will  be  brought  up  for  review,  and  ex- 
ceptions shall  have  been  filed  to  the  decision  of  the  court  or  the  referee, 
and  a  case  or  a  case  and  exceptions  shall  have  been  made,  settled  and 
allowed,  as  required  by  the  provisions  of  this  act,  for  the  review  of  the 
trial  of  actions  in  the  supreme  court  without  a  jury.  The  proceedings 
of  the  plaintiff  shall  not  be  stayed  upon  such  an  appeal,  except  by 
order  of  the  court,  upon  notice  to  him,  and  the  appeal  shall  not  affect 
his  possession  of  the  property  taken,  and  the  appeal  of  a  defendant 
shall  not  be  heard  except  on  his  stipulation  not  to  disturb  such  pos- 
session. 

The  objection  that  a  corporation,  seeking  to  condemn  property  under  the  right 
of  eminent  domain,  has  no  legal  existence,  should  be  taken  in  proper  time  ;  if  not, 
the  objection  can  not  be  raised  on  appeal  to  the  court  of  appeals.  Matter  of 
Union  E.  R.  R.  Co.  of  Brooklyn,  112  N.  Y.,  61. 

12 


SUPPLEMENTAL  PROVISIONS. 

Any  person  deeming  himself  aggrieved  may  appeal.  N.  Y.  &  E.  R.  R.  Co  v 
Corey,  5  How.,  177. 

An  appeal  lies  to  the  court  of  appeals  from  an  order  of  the  general  term,  affirming 
an  order  of  the  special  term.  Rensselaer  &  8.  R.  R.  Co.  v.  Davis,  43  N.  Y.,  137. 

But  it  will  not  review  matters  of  discretion.  Matter  of  N.  Y.  C.  &  H.  R.  R.  R. 
Co.,  64  id.,  60.  To  the  same  effect  Matter  of  Kings  Co.  E.  R.  R.  Co.,  82  id.,  100. 

An  appeal  from  so  much  of  the  order  of  the  general  term,  reversing  an  award 
confirmed  by  the  special  term,  as  refused  to  appoint  new  commissioners,  when  the 
latter  were  named  in  a  stipulation,  is  reviewable  in  the  court  of  appeals.  Matter 
of  N.  Y.  &  L.,  etc.,  R.  R.  Co.,  98  N.  Y.,  447. 

The  rule  which  deprives  a  party  of  the  right  to  appeal  from  an  order  or  judg- 
ment under  which  he  has  taken  a  benefit  is  not  applicable  to  these  proceedings, 
and  the  right  to  appeal  is  not  affected  by  accepting  payment  for  the  land  and 
giving  receipt  therefor.  Matter  of  N.  Y.  &  H.  R.  R.  Co.,  98  N.  Y.,  12.  To  the 
same  effect  Matter  of  N.  Y.,  W.  S.  &  B.  R.  R.  Co.,  94  N.  Y.,  287. 

Where  the  owner  objects  to  the  appointment  of  commissioners  on  the  ground  that 
the  land  was  sought  for  private  purposes,  her  failure  to  appeal  from  a  decision 
that  the  purpose  was  public,  and  her  consent  to  the  appointment  of  commission- 
ers, do  not  amount  to  a  waiver  of  her  rights,  and  she  may  afterwards  move  to  set 
the  order  aside.  In  re  Niagara  Falls  &  W.  Ry.  Co.,  4  N.  Y.  Supp.,  485. 

But  a  small  portion  of  the  evidence  upon  which  the  commissioners  act  in  the 
formation  of  their  awards  can  be  placed  before  the  appellate  court,  and  there  can, 
therefore,  be  no  regular  judicial  review  where  the  original  jurisdiction  is  exercised 
in  such  a  manner.  In  matter  of  Staten  Island  R.  T.  Co.  v.  Antonio  Lezza  i,  47 
Hun,  397. 

§3376.  Appeal  from  judgment  by  plaintiff.— If  a  trial  has  been 
had  and  judgment  entered  in  favor  of  the  defendant,  the  plaintiffmay 
appeal  therefrom  to  the  general  term  within  the  time  provided  for 
appeals  from  judgments  by  title  four  of  chapter  twelve  of  this  act,  and 
all  the  provisions  of  such  chapter  relating  to  appeals  from  judg- 
ments shall  apply  to  such  appeals;  and  on  the  hearing  of  the  appeal 
the  general  term  may  affirm,  reverse  or  modify  the  judgment,  and  in 
case  of  reversal  may  grant  a  new  trial,  or  direct  that  judgment  be  en- 
tered in  favor  of  the  plaintiff.  If  the  judgment  is  affirmed,  costs  shall 
be  allowed  to  the  respondent,  but  if  reversed  or  modified,  no  costs  of  the 
appeal  shall  be  allowed  to  either  party. 

§  3377.  New  appraisal,  when. — On  the  hearing  of  the  appeal  from 
the  final  order  the  court  may  direct  a  new  appraisal  before  the  same 
or  new  commissioners,  in  its  discretion,  and  the  report  of  srtch  commis- 
sioners shall  be  final  and  conclusive  upon  all  parties  interested.  If 
\\IQ  amount  of  the  compensation  to  be  paid  is  increased  by  the  last  re- 
port, the  difference  shall  be  a  lien  upon  the  land  appraised,  and  shall 
be  paid  to  the  parties  entitled  to  the  same,  or  shall  be  deposited  asthe 
t-.ourt  shall  direct ;  and  if  the  amount  is  diminished,  the  difference 
s>hall  bo  refunded  to  the  plaintiff  by  the  party  to  whom  the  same  may 
have  been  paid,  and  judgment  therefor  may  be  rendered  by  the  court, 
on  the  filing  of  the  last  report,  against  the  parties  liable  to  pay  the 
same. 

The  provision  that  the  determination  as  .to  damages  for  land  taken,  made  by 
commissioners  of  appraisal  in  their  second  report,  shall  be  final  and  conclusive, 
precludes  as  well  a  review  by  a  crommo'i  law  certiorari  as  by  appeal.  People  ex 
rel.  Schuylerville  R.  R.  Co  v.  Betts,  55  N.  Y.,  000. 

13 


SUPPLEMENTAL   PROVISIONS. 

Such  second  report  needs  no  order  of  confirmation.  Matter  of  Prospect  Park  1>. 
C.  I.  R.  R.  Co.,  85  N.  Y.,  489. 

To  authorize  a  court  to  review  on  motion  a  second  report,  there  must  be  such  an 
irregularity,  fraud  or  mistake  in  the  proceedings  of  the  commissioners  as  would 
authorize  the  court  under  its  established  practice  to  set  aside  a  judgment  or 
verdict  on  a  motion.  Matter  of  N.  Y.  Elevated  R.  R.  Co.,  41  Hun,  502. 

§  3378.  Conflicting  claimants. —  If  there  are  adverse  and  conflict- 
ing claimants  to  the  money,  or  any  part  of  it,  to  be  paid  as  compensa- 
tion for  the  property  taken,  the  court  may  direct  the  money  to  be  paid 
into  the  court  by  the  plaintiff,  and  may  determine  who  is  entitled  to 
the  same,  and  direct  to  whom  the  same  shall  be  paid,  and  may,  in  its 
discretion,  order  a  reference  to  ascertain  the  facts  on  which  such 
determination  and  direction  are  to  be  made. 

If  the  commissioners  are  unable  to  determine  to  whom  an  award  should  be  made, 
it  should  be  made  to  unknown  owners,  the  title  to  the  award  being  determined  in 
subsequent  proceedings  -between  the  claimants.  It  is  error  to  make  a  nominal 
award  because  of  a  failure  to  make  title.  Matter  of  Department  of  Public  Parks, 
53  Hun,  280. 

A  claim  to  a  portion  of  the  sum  awarded  as  compensation  made  by  the  county 
for  unpaid  taxes  upon  the  property,  can  not  be  maintained  on  any  ground  which 
would  be  insufficient  in  a  direct  proceeding  by  virtue  of  the  assessement  to 
support  a  sale  of  the  property  or  uphold  a  tax  title.  Matter  of  N.  Y.  C.  &  H. 
R.  R.  R.  Co.,  90  N.  Y.,  342. 

The  provisions  of  this  section  are  not  in  violation  of  the  Constitution.  The  money 
takes  the  place  of  land,  and  is  subject  to  the  same  liens  to  which  the  land  was  be- 
fore being  taken.  Matter  of  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  60  N.  Y.,  116. 

§  3379.  Possession  of  property  on  giving  security. — At  any  stage 
of  the  proceeding  the  court  may  authorize  the  plaintiff,  if  in  possession 
of  the  property  sought  to  be  condemned,  to  continue  in  possession,  and 
may  stay  all  actions  or  proceedings  against  him  on  account  thereof, 
upon  giving  security,  or  depositing  such  sum  of  money  as  the  court 
may  direct  to  be  held  as  security  for  the  payment  of  the  compensation 
which  may  be  finally  awarded  to  the  owner  therefor  and  the  costs  of 
the  proceeding,  and  in  every  such  case  the  owner  may  conduct  the 
proceeding  to  a  conclusion,  if  the  plaintiff  delays  or  neglects  to  pros- 
ecute the  same. 

§  3380.  When  possession  of  real  property  given  immedi- 
ately.— When  an  answer  to  the  petition  has  been  interposed,  and  it 
appears  to  the  satisfaction  of  the  court  that  the  public  interests  will  be 
prejudiced  by  delay,  it  may  direct  that  the  plaintiff  be  permitted  to 
enter  immediately  upon  the  real  property  to  be  taken,  and  devote  it 
temporarily  to  the  public  use  specified  in  the  petition,  upon  depositing 
with  the  court  the  sum  stated  in  the  answer  as  the  value  of  the  prop- 
erty, and  which  sum  shall  be  applied,  so  far  as  it  may  be  necessary  for 
that  purpose,  to  the  payment  of  the  award  that  may  be  made,  and  the 
costs  and  expenses  of  the  proceeding,  and  the  residue,  if  any,  returned 
to  the  plaintiff,  and,  in  case  the  petition  should  be  dismissed,  or  no 
award  should  be  made,  or  the  proceedings  should  be  abandoned  by  the 
plaintiff,  the  court  shall  direct  that  the  money  so  deposited,  so  far  as  it 

14 


SUPPLEMENTAL  PROVISIONS. 

may  be  necessary,  shall  be  applied  to  the  payment  of  any  damages  which 
the  defendant  may  have  sustained  by  such  entry  upon  and  use  of  his 
property,  and  his  costs  and  expenses  of  the  proceeding,  such  damages 
to  be  ascertained  by  the  court,  or  a  referee  to  be  appointed  for  that 
purpose,  and  if  the  sum  so  deposited  shall  be  insufficient  to  pay  such 
damages,  and  all  costs  and  expenses  awarded  to  the  defendant,  judg- 
ment shall  be  entered  against  the  plaintiff  for  the  deficiency,  to  be 
enforced  and  collected  in  the  same  manner  as  a  judgment  in  the 
supreme  court ;  and  the  possession  of  the  property  shall  be  restored  to 
the  defendant. 

§  3381.  Notice  of  pendency  of  action  to  be  filed. — Upon  ser- 
vice of  the  petition,  or  at  any  time  afterwards  before  the  entry  of  the 
final  order,  the  plaintiff  may  file  in  the  clerk's  office  of  each  county 
where  any  part  of  the  property  is  situated,  a  notice  of  the  pendency  of 
the  proceeding  stating  the  names  of  the  parties  and  the  object  of  the 
proceeding,  and  containing  a  brief  description  of  the  property  effected 
thereby,  and  from  the  time  of  filing,  such  notice  shall  be  constructive 
notice  to  a  purchaser,  or  incumbrancer  of  the  property  effected  thereby, 
from  or  against  a  defendant  with  respect  to  whom  the  notice  is  directed 
to  be  indexed,  as  herein  prescribed,  and  a  person  whose  conveyance  or 
incumbrance  is  subsequently  executed  or  subsequently  recorded,  is 
bound  by  all  proceedings  taken  in  the  proceeding,  after  the  filing  of  the 
notice,  to  the  same  extent  as  if  he  was  a  party  thereto.  The  county  clerk 
must  immediately  record  such  notice  when  filed  in  the  book  in  his  office 
kept  for  the  purpose  of  recording  notices  of  pendency  of  actions,  and 
index  it  to  the  name  of  each  defendant  specified  in  the  direction 
appended  at  the  foot  of  the  notice,  and  subscribed  by  the  plaintiff  or 
his  attorney. 

§  3382.  Practice  in  cases  not  provided  for.  In  all  proceedings 
under  this  title,  where  the  mode  or  manner  of  conducting  all  or  any 
of  the  proceedings  therein  is  not  expressly  provided  for  by  law,  the 
court  before  whom  such  proceedings  may  be  pending,  shall  have  the 
power  to  make  all  necessary  orders  and  give  necessary  directions  to 
carry  into  effect  the  object  and  intent  of  this  title,  and  of  the  several 
acts  conferring  authority  to  condemn  lands  for  public  use,  and  the 
practice  in  such  cases  shall  conform,  as  near  as  may  be,  to  the 
ordinary  practice  in  such  court. 

§  3383.  Repealing  clause. — So  much  of  all  acts  and  parts  of  acts 
as  prescribe  a  method  of  procedure  in  proceedings  for  the  condemna- 
tion of  real  property  for  a  public  use  is  repealed,  except  such  acts  and 
parts  of  acts  as  prescribe  a  method  of  procedure  for  the  condemna- 
tion of  real  property  for  public  use  as  a  highway,  or  as  a  street,  ave- 
nue, or  public  place  in  an  incorporated  city  or  village,  or  as  may  pre- 
15 


SUPPLEMENTAL   PROVISIONS. 

scribe  methods  of  procedure  for  such  condemnation  for  any  public  use 
for,  by,  on  behalf,  on  the  part,  or  in  the  name  of  the  corporation  of  the 
city  of  New  York,  known  as  the  mayor,  aldermen,  and  commonalty  of 
the  city  of  New  York,  or  by  whatever  name  known,  or  by  or  on  the 
application  of  any  board,  department,  commissioners  or  other  officers 
acring  for  or  on  behalf  or  in  the  name  of  such  corporation  or  city,  or 
where  the  title  to  the  real  property  so  to  be  acquired  vests  in  such  cor- 
poration or  in  such  city;  and  all  proceedings  for  the  condemnation  of 
real  property  embraced  within  the  exceptions  enumerated  in  this  sec- 
tion are  exempted  from  the  operation  of  this  title.  [Thus  amended  by 
Laws  1890,  chap.  247.*] 

§  3384.  When  act  to  take  effect,— This  title  shall  take  effect  on 
the  first  day  of  May,  one  thousand  eight  hundred  and  ninety,  and 
shall  not  affect  any  proceeding  previously  commenced. 

TITLE    II. 

PROCEEDINGS  FOR  THE  SALE  OF  CORPORATE  REAL  PROPERTY. 

SECTION  3390.  When  proceedings  pursuant  to  the  provisions  of  this  title  to   be 
taken. 

3391.  Proceedings  to  be  instituted  by  presentation  of  petition;  what  to 

contain. 

3392.  Hearing  of  application.     Notice,  appointment  of  referee. 

3393.  Order ;  when  application  for,  may  be  opposed. 

3394.  Insolvent  corporation  or  association ;  notice  to  creditors. 

3395.  Service  of  notices;  how  made. 

3396.  Practice  in  cases  not  provided  for. 

3397.  When  act  to  take  effect. 

§  3390.  When  proceedings  pursuant  to  the  provisions  of  this 
title  to  be  taken. — Whenever  any  corporation  or  joint-stock  associa- 
tion is  required  by  law  to  make  application  to  the  court  for  leave  to 
mortgage,  lease  or  sell  its  real  estate,  the  proceeding  therefor  shall  be 
had  pursuant  to  the  provisions  of  this  title. 

§  3391.  Proceeding*,  to  be  instituted  by  presentation  of 
petition;  what  to  contain. — The  proceeding  shall  be  instituted  by 
the  presentation  to  the  supreme  court  of  the  district  or  the  county  court 
of  the  county  where  the  real  property,  or  some  part  of  it,  is  situated,  by 
the  corporation  or  association,  applicant,  of  a  petition  setting  forth  the 
following  facts : 

1.  The  name  of  the  corporation  or  association,  and  of  its  directors, 
trustees  or  managers,  and  of  its  principal  officers,  and  their  places  of 
residence. 

2.  The  business  of  the  corporation  or  association,  or  the  object  or 
purpose  of  its  incorporation  or  formation,  and  a  reference  to  the  statute 
under  which  it  was  incorporated  or  formed. 

*Thc  amendment  by  chapter  247,  Laws  1890,  was  passed  April  30,  1890,  and  went  into  ctiec' 
immediately. 

Ifi 


SUPPLEMENTAL  PROVISIONS. 

3.  A  description  of  the  real  property  to  be  sold,  mortgaged  or  leased, 
by  metes  and  bounds,  with  reasonable  certainty. 

4.  That  the  interests  of  the  corporation  or  association  will  be  promoted 
by  the  sale,  mortgage  or  lease,  of  the  real  property  specified,  and  a 
concise  statement  of  the  reasons  therefor. 

5.  That  such  sale,  mortgage  or  lease  has  been  authorized,  by  a  vote 
of  at  least  two-thirds  of  the  directors,  trustees  or  managers  of  the  cor- 
poration or  association,  at  a  meeting  thereof,  duly  called  and  held,  and 
a  copy  of  the  resolution  granting  such  authority. 

6.  The  market  value  of  the  remaining  real  property  of  the  corpora- 
tion or  association,  and  the  cash  value  of  its  personal  assets,  arid  the 
total  amount  of  its  debts  and  liabilities,  and  how  secured,  if  at  all. 

7.  The  application  proposed  to  be  made  of  the  moneys  realized  from 
such  sale,  mortgage  or  lease. 

8.  Where  the  consent  of  the  shareholders,  stockholders  or  members 
of  the  corporation  or  association,  is  required  by  law  to  be  first  obtained, 
a  statement  that  such  consent  has  been  given,  and  a  copy  of  the  con- 
sent or  a  certified  transcript  of  the  record  of  the  meeting  at  which  it 
was  given,  shall  be  annexed  to  the  petition. 

9.  A  demand  for  leave  to  mortgage,  lease  or  sell  the  real  estate 
described. 

The  petition  shall  be  verified  in  the  same  manner  as  a  verified 
pleading  in  an  action  in  a  court  of  record. 

As  to  requirements  of  petition  on  sale  of  real  estate  of  religious  corporations  in 
first  department,  see  rulea  of  the  general  term  of  the  supreme  court,  first  district, 
March,  1862. 

Under  the  act  to  provide  for  the  incorporation  of  religious  societies,  the  trustees 
of  such  a  corporation  are  authorized  to  act  in  its  behalf  in  taking  the  steps  required 
for  effecting  a  sale  of  its  real  estate,  and  their  acts  are  binding  upon  it,  although 
it  does  not  appear  that  they  had  the  express  sanction  or  authority  of  a  majority  of 
the  corporation.  The  Madison  Avenue  Baptist  Church  v.  The  Baptist  Church  in 
Oliver  street,  46  N.  Y.,  131.  Same  case  in  73  N.  Y.,  82,  on  a  subsequent  appeal. 

§3392.  Hearing  of  application — Notice  —  Appointment  of 
referee. — Upon  presentation  of  the  petition,  the  court  may  immedi- 
ately proceed  to  hear  the  application,  or  it  may,  in  its  discretion,  direct 
that  notice  of  the  application  shall  be  given  to  any  person  interested 
therein,  as  a  member,  stockholder,  officer  or  creditor  of  the  corporation 
or  association,  or  otherwise,  in  which  case  the  application  shall  be 
heard  at  the  time  and  place  specified  in  such  notice,  and  the  court 
may  in  any  case  appoint  a  referee  to  take  the  proofs  and  report  the 
same  to  the  court,  with  his  opinion  thereon. 

§  3393.  Order ;  when  application  for,  may  be  opposed. —  Upon 
the  hearing  of  the  application,  if  it  shall  appear,  to  the  satisfaction  of 
the  court,  that  the  interests  of  the  corporation  or  association  will  be 
promoted  thereby,  an  order  may  be  granted  authorizing  it  to  sell, 
morrgage  or  lease  the  real  property  described  in  the  petition,  or  any 
part  thereof,  for  such  sum,  and  upon  such  terms  as  the  court  may  pre- 
17 


SUPPLEMENTAL   PROVISIONS. 

scribe,  and  directing  what  disposition  shall  be  made  of  the  proceeds 
of  such  sale,  mortgage  or  lease. 

Any  person,  whose  interests  may  be  affected  by  the  proceeding,  may 
appear  upon  the  hearing  and  show  caute  why  the  application  should 
not  be  granted. 

A  provisional  order  may  be  made,  e.  g.,  an  order  that  the  sale  may  be  made  for 
a  certain  price  ttnd  if  a  proper  site  for  a  new  church  can  be  obtained.  Matter  of 
Brick  Presbyterian  Church,  3  Edw.,  155. 

The  sale  may  be  made  by  the  trustees,  or  by  an  officer  appointed  by  the  court. 
De  Ruyter  i>.  St.  Peter's  Church,  3  N.  Y.,  240. 

It  seems  that  the  jurisdiction  of  the  court  to  make  an  order  for  a  sale  depends 
upon  ihe  facts  before  it  when  the  order  was  made,  and  that  the  order  cannot  be 
sustained  by  proof  that  the  facts  existed  which  justified  the  order,  but  which  did 
not  appear  to  the  court  at  the  time  of  the  application.  Wheaton  v.  Gates,  18 
N.  Y.,  395. 

Where  it  appears  from  the  application  that  the  sale  is  sought  for  the  purpose  of 
distributing  the  proceeds  among  the  pew-holdei-s,  the  court  has  no  jurisdiction  to 
grant  the  application,  and  its  order  is  inoperative.  Madison  Avenue  Baptist 
Church  v.  Baptist  Church  in  Oliver  St.,  46  N.  Y.,  140,  citing  Wheaton  v.  (rates,  18 
N.  Y.,  395. 

Jurisdiction  of  the  court  to  order  sale  by  a  religious  society  of  its  real  estate, 
under  Laws  1813,  chap.  60,  §  11,  depends  upon  the  facts  before  it  at  the  time  of 
making  the  order,  and  cannot  be  upheld  by  proof  that  facts  which  would  have 
justified  the  order  existed,  but  were  not  brought  to  its  attention.  Madison  Avenue 
Baptist  Church  v.  Baptist  Church  in  Oliver  St.,  73  N.  Y.,  82. 

§  3394.  Insolvent  corporation  or  association  ;  notice  to  cred- 
itors.— If  the  corporation  or  association  is  insolvent,  or  its  property 
and  assets  are  insufficient  to  fully  liquidate  its  debts  and  liabilities, 
the  application  shall  not  be  granted,  unless  all  the  creditors  of  the  cor- 
poration have  been  served  with  a  notice  of  the  time  and  place  at  which 
the  application  will  be  heard. 

§  3395.  Service  of  notices  ;  how  made. — Service  of  notices,  pro- 
vided for  in  this  title,  may  be  made  either  personally  or,  in  case  of 
absence,  by  leaving  the  same  at  the  place  of  residence  of  the  person  to 
be  served,  with  some  person  of  mature  age  and  discretion,  at  least 
eight  days  before  the  hearing  of  the  application,  or  by  mailing  the 
same,  duly  enveloped  and  addressed  and  postage  paid,  at  least  six- 
teen days  before  such  hearing. 

§  3396.  Practice  in  cases  not  provided  for. — In  all  applications 
made  under  this  title,  where  the  mode  or  manner  of  conducting  any  or 
all  of  the  proceedings  thereon  are  not  expressly  provided  for,  the  court 
before  whom  such  application  may  be  pending,  shall  have  the  power  to 
make  all  the  necessary  orders  and  give  the  proper  directions  to  carry 
into  effect  the  object  and  intent  of  this  title,  or  of  any  act  authorizing 
the  sale  of  corporate  real  property,  and  the  practice  in  such  cases  shall 
conform,  as  near  as  may  be,  to  the  ordinary  practice  in  such  court. 

§  3:597.  When  act  to  take  effect — This  title  shall  take  effect  May 
first,  one  thousand  eight  hundred  and  ninety,  and  shall  not  affect  any 
r^oceeding  previously  commenced. 

18 


No.  1. 

PLAINTIFF'S  PETITION  FOR  CONDEMNATION  OF  REAL 

PROPERTY. 

(§  3360.) 
SUPREME  COURT  —  COUNTY  OP  ALBANY. 


RAILROAD  COMPANY, 

Plaintiff, 
against 

Defendant. 


To  the  Supreme  Court : 

The Railroad  Company,  the  above  named  plaintiff,  by 

this  petition,  respectfully  shows  to  this  court : 

First. —  That   the    said  Railroad    Company    is    a 

domestic  corporation  duly  Organized  under  and  in  pursuance  of  the 
laws  of  the  State  of  New  York,  for  the  purpose  of  constructing,  main- 
taining and  operating  a  railway  for  public  use  in  the  conveyance  of 
persons  and  property,  from  a  point  on  the  north  side  of  Forty-second 
street,  near  Vanderbilt  avenue,  in  the  city  and  county  of  New  York ; 
running  thence  through  said  city  to  a  point  on  the  Hudson  river  at  or 
near  Spuyten  Duyvil,  and  thence  along  or  near  the  east  shore  of  the 
Hudson  river  via  Peekskill,  Poughkeepsie  and  Hudson  to  or  near  East 
Albany,  crossing  the  Hudson  river  at  Albany  ;  thence  to  Schenectady, 
and  thence  along  or  near  the  north  shore  of  the  Mohawk  river  to  Utica ; 
thence  via  Syracuse  to  Buffalo ;  the  line  of  said  railway  running 
through  or  into  the  counties  of  Westchester,  Putnam,  Dutchess,  Colum- 
bia, Rensselaer,  Albany,  etc.,  in  the  State  of  New  York ;  that  the 
said  plaintiff  has  its  principal  place  of  business  at  the  Grand  Central 
depot,  New  York  city ;  and  that  the  names  and  places  of  residence  of 

its  principal  officers  ire  : president,  New  York  city;  — 

secretary,  New  York  city ;  and  of  its  directors  are, , . 

19 


FORMS. 

Second. — That  the  real  property  to  be  condemned  is  situated  in  the 
city  and  county  of  Albany  and  state  of  New  York,  bounded  and 
described  as  follows,  to  wit :  (describe  property). 

Third. — That  the  public  use  for  which  the  said  property  is  required 
is  for  tracks,  switches  and  sidings,  whereon  and  whereby  plaintiff's 
cars  and  trains  may  be  moved,  loaded  and  unloaded,  stored,  received 
and  dispatched  ;  that  said  property  is  necessary  from  the  great 
increase  of  the  business  of  the  plaintiff,  in  that  it  will  enable  the 
plaintiff  to  lay  out  additional  tracks  for  the  loading  and  unloading  of 
cars ;  furnish  additional  room  for  the  storage  of  cars ;  to  receive  and 
deliver  freight  with  increased  convenience  ;  save  time  and  expense  to 
the  consignee  of  freight  arid  to  the  plaintiff,  and  in  every  respect  pro- 
mote the  interest -and  welfare  of  the  plaintiff,  as  well  as  of  those  who 
furnish  freight  for  transportation. 

Fourth. — That  the  names  and  places  of  residence  of  the  owners  of 
said  property  are  as  follows,  viz.:  and  whose  place  of  residence  can- 
not, after  diligent  inquiry,  be  ascertained. 

( Where  owner  infant:)  That  said  —  —  is  an  infant,  and  his 

general  guardian  is  —  — ,  who  resides  at  No.  1180  Broadway, 

in  the  city  of  Albany,  N.  Y.;  that is  an  infant,  but  has 

no    general    guardian,    and   resides  with  at  No.   42 

Colonie  street,  in  the  city  of  Albany,  N.  Y. 

!    ( Where  owner  is  lunatic,  idiot  or  habitual  drunkard :)  That  said  — 

is  a  lunatic,  and  that  his  committee  (or  trustee)  is  — , 

who  resides  at  No.  64  Livingston  avenue,  in  the  city  of  Albany,  N.  Y. ; 
that  said is  a  habitual  drunkard ;  that  he  has  no  com- 
mittee (or  trustee),  and  resides  with —  at  No. 

in  the  city  of  Albany,  N.  Y. 


(  Where  owner  non-resident,  having  agent  or  attorney  :)  That  said- 


is   a  non-resident  residing  in  the  city  of  Toledo,  and  State  of  Ohio, 
having  an  agent  (or  attorney)  \i\  the  State  authorized  to  contract  for  the 

sale  of  the  said  property,  whose  name  is residing  at  No.  42  Van 

Woert  street,  in  the  city  of  Albany,  N.  Y. 

(Where  owner  unknown:)  That  the  owner  of  the  said  property  is 
unknown  to  the  plaintiff,  and  cannot,  after  diligent  inquiry,  be  ascer- 
tained; that  for  the  purpose  of  ascertaing  him,  inquiry  was  made  of 
numerous  persons  residing  'upon  and  in  the  vicinity  of  the  said  prop- 
erty, and  of  many  others  who  would  be  most  likely  to  have  knowledge  as 
to  who  the  owner  of  said  property  was;  and  that  the  only  information 
plaintiff  could  obtain  from  any  of  such  persons,  in  all  such  conversa- 
tions and  inquiries,  is  that  a  person  whose  name  could  not  be  learned, 
claimed  to  own  the  said  property  in  the  year  186H,  and  who,  in  18(55, 
removed  to  San  Francisco,  California,  and  has  not  been  seen  or  heard 
from  since. 

20 


FORMS. 

( "Where  place  of  residence  of  owner  unknown : )  That  the  place  of  resi- 
dence of is  unknown  to  plaintiff,  and  cannot,  after 

diligent  inquiry,  be  ascertained ;  that  for  the  purpose  of  ascertaining  it, 

inquiry  was  made  of ,  who  resides  in  the  city  of  Troy, 

N.  Y.,  who  is  said brother,  and  only  relative  residing  in 

this  state,  and  that  said ,  in  answer  to  said  inquiries, 

on  or  about  the  1st  day  of  May  last,   said  that  he  was  ignorant  of 

said residence ;  but  that  said was  not 

a  resident  of  this  state,  and  that  his  last  known  place  of  residence 
was  at  Lima,  Ohio,  from  whence  he  moved  about  a  year  ago  ;  that  a 

letter  addressed  to  said — ,  at  Lima,  Ohio,  was  deposited 

in  the  post-office  at  Albany,  N.  Y.,  and  was  shortly  thereafter  returned 

through  the  post-office,  with  the  information  that  the  said 

could  not  be  found. 

Fifth.  —  That  the  plaintiff  has  been  unable  to  agree  with  the  owners 
of  the  said  property  for  its  purchase,  for  the  reason  that  the  said  owners 
demand  nine  thousand  dollars  for  said  property,  which  is  largely  in 
excess  of  the  value  thereof. 

/Sixth,  —  That  the  value  of  the  said  real  property  is  five  thousand 
dollars. 

/Seventh.  —  That  it  is  the  intention  of  the  plaintiff  in  good  faith  to 
complete  the  work  or  improvement  for  which  the  said  property  is  to 
be  condemned,  and  that  all  the  preliminary  steps  required  by  law 
have  been  taken  to  entitle  it  to  institute  these  proceedings. 

Wherefore  the  plaintiff  demands  that  it  may  be  adjudged  that  the 
public  use  requires  the  condemnation  of  the  real  property  herein  de- 
scribed, and  that  the  plaintiff  be  entitled  to  take  and  hold  such  prop- 
erty for  the  public  use  specified,  upon  making  compensation  therefor, 
and  that  commissioners  of  appraisal  be  appointed  to  ascertain  the  com- 
pensation to  be  made  to  the  owners  for  the  property  so  taken. 

Dated,  New  York  City,  May  7,  1890. 

RAILROAD  COMPANY, 

By ,  President. 

STATE  OF  NEW  YORK,         ) 
CITY  AND  COUNTY  OF    NEW  YORK,  /  ss' ' 

,  being  duly  sworn,  says   that  he  is  the  President 

of  the  -  —  Railroad  Company,  the  plaintiff  named,  in  the 

foregoing  petition  ;  that  he  knows  the  contents  of  said  petition,  and 
that  the  same  is  true  to  his  own  knowledge  except  as  to  the  matters 
therein  stated  to  be  alleged  upon  information  and  belief,  and  that  as 
to  those  matters  he  believes  it  to  be  true. 

Subscribed  and  sworn  to  before  me  ) . 

this  7th  day  of  May,  1890.          j 

A.  B., 
Notary  Public,  New  York  County. 

21 


FORMS, 

No.  2. 

NOTICE   OF    TIME   AND    PLACE    OF   PRESENTATION   OF 

PETITION. 

(§  3361). 
NEW  YORK  SUPREME  COURT -COUNTY  OF  ALBANY. 


Plaintiff, 
against 


Defendants. 


Take  notice,  that  the  petition  of  the  New  York  Central  and  Hudson 
River  Railroad  Company,  a  copy  of  which  is  herewith  served  upon  you, 
will  be  presented  to  the  Supreme  Court  of  the  State  of  New  York,  at  a 
Special  Term  thereof,  appointed  to  be  held  at  the  City  Hall  in  the 
city  of  Albany,  N.  Y.,  on  the  27th  day  of  May,  1890,  at  the  opening  of 
the  court  on  that  day,  or  as  soon  thereafter  as  counsel  can  be  heard, 
and  a  motion  will  then  and  there  be  made  that  the  demand  of  said 
petition  be  granted. 

Dated  Albany,  N.  Y.,  May . 

Yours,  etc., 

R.  &  H., 

Attorneys  for  Plaintiff. 

Office  and  post-office  address,  Tweddle  building,  Albany,  N.  Y. 
To  A.  B.,  etc.,  (naming  owners  of  property). 


No.  3. 
ANSWER  CONTAINING  GENERAL  AND  SPECIFIC  DENIALS. 

(§  3365.) 

[Name  of  Court.] 

[Names  of  all  the  parties.] 

The  defendant  [name,  if  less  than  all]  answering  the  petition  of  the 
plaintiff  herein: 

Denies  [or  denies  upon  information  and  belief]  that,  etc.  [stating 
allegation  of  the  petition  denied  by  him,  and  in  like  manner  make  denial 
of  each  allegation  specifically  denied.] 

[Or  denies  each  and  every  allegation  in  said  petition  contained.] 

[Or  denies  any  knowledge  or  information  sufficient  to  form  a  belief, 
as  to  each  and  every  allegation  in  the  said  petition  contained.] 

[Or  denies  any  knowledge  or  information  sufficient  to  form  a  belief, 

22 


FORMS. 

as  to  whether,  etc.  (stating  the  allegation,  as  to  which  such  denial  ?s 
made,)  and  in  like  manner  as  to  each  allegation  so  denied.] 

Wherefore  this  defendant  demands  judgment  against  the  plaintiff, 
dismissing  the  petition  herein,  together  with  costs. 

G.  8., 

Defendant's  Attorney. 
Office  and  post-office  address,  No. street, ,  N.  Y. 

STATE  OF  NEW  YORK,     \ 
CITY  AND  COUNTY  of  ALBANY,  J  ss*  * 

F.  K.,  being  duly  sworn,  says  that  he  is  one  of  the  defendants  named 
in  the  above  entitled  proceeding ,  that  the  foregoing  answer  is  true  to 
the  knowledge  of  the  deponent,  except  as  to  the  matters  therein  stated 
to  be  alleged  on  information  and  belief,  and  that  as  to  those  matters  he 
believes  it  to  be  true. 

F.  X.  K. 
Subscribed  and  sworn  to  before  me,  ) 

this day  of  May,  1890.      / 


No.  4. 
ANSWER  SETTING  UP  NEW  MATTER  AS  A  DEFENSE. 

(§  3365.) 
[Nam>  of  Court.] 
[Names  of  all  the  parties  ] 

The  defendant  [name,  if  less  than  all],  answering  the  petition  of 
plaintiff  herein,  alleges  that,  etc.  [stating  facts  or  new  matter  constituting 
defense], 

Wherefore  this  defendant  demands  judgment  against  the  plaintiff, 
dismissing  petition  herein,  together  with  costs. 

R.  G. 
Defendants  Attorney. 

Office  and  post  office  address,  No. street, ,  N.  Y. 

[Verification  as  inform  No.  3.J 


A.  SECTION. 

Abandonment  of  proceedings 3374 

Actions  in  supreme  court,  rules  of,  to  govern 3364 

Additional  allowance 3372 

Adjournments  by  commissioners 3370 

Answer  in  condemnation  proceedings 3365 

Appeal,  from  final  order 3375 

from  judgment 3376 

Appearance,  by  defendants  in  condemnation  proceedings 3363 

of  parties 3364 

Application  for  leave  to  sell,  etc.,  how  regulated 3390 

Appointment  of  commissioners  to  ascertain  compensation 3369 

Appraisal,  when  a  new  one  ordered 3377 

Attorney,  who  court  to  appoint 3363 

c. 

Commissioners,  proceedings  of 3370 

to  ascertain  compensation,  appointment  of 3369 

Compromise,  offer  to . 3372 

Confirmation  of  commissioners'  report , 3371 

Conflicting  claimants 3378 

Contents,  of  answer  in  condemnation  proceedings 8365 

of  judgment  of  condemnation 3369 

of  petition  for  condemnation  3360 

of  petition  for  leave  to  sell,  etc 3391 

Costs,  for  guardian,  etc 3372 

generally  3372 

when  awarded  defendant , 3369 

D. 

Defendant,  when  awarded  costs 3369 

Deli vering  possession  of  premises 3373 

Deposit  of  money,  deemed  payment 3371 

E. 

Enforcement  of  judgment 3373 

Exceptions  to  findings 3367 

F. 

Fees  of  commissioners 3370 

Final  order,  after  commissioners' report 3371 

G. 

General  provisions  applicable  to  condemnation  proceedings 3364,  3368 

Guardian  ad  litem,  appointment  of 3363 


INDEX. 

H.  SECTION. 

Habitual  drunkard  ,  a  defendant,  appearance  for  ..........................   3363 

Hearing-  of  application  to  sell,  etc  ........................................   3392 

I. 

Idiot  defendant,  appearance  for....  ..........  .  ...........................  3363 

Immediate  possession,  when  given  ........  .  ............  .....  .............  3380 

Infant  defendant,  appearance  by  ............................  .  ............  3363 

Insolvent  corporation,  application  by,  to  sell,  etc  ..........................  3394 

Issues  on  condemnation,  trial  of  ..........................................  3367 

J. 

Judgment,  appeal  from,  by  plaintiff  ......................................  3376 

how  enforced  ......................  .  .........................  3373 

of  condemnation  ..............................................  3369 


Lease  of  corporate  real  property....  vtl.9»  ............  .  .....  .  ....  ....  3390-3<iy;» 

Lunatic  defendant,  appearance  for  ...............  .  .........  .  .............  3363 

M. 

Measure  of  damages,  how  arrived  at  .....................................  3370 

Mortgage  of  corporate  real  property  .................................   3390-8397 

N. 

New  appraisal  ..........................................................  3377 

Notice,  in  condemnation  proceedings,  service  of  .....    ......................  336  1 

how  served  ......................................................  3395 

of  application  to  sell,  etc  ..........................................  3392 

of  appointment  of  commissioners  ..................................  3369 

'        of  hearing  before  commissioners  ...................................  3370 

of  pendency,  filing  of  ........................  .  ....................  3381 

to  be  annexed  to  petition  .................  .  .......................  3361 

to  creditors  of  application  to  sell,  etc  ...............................  3394 

0. 

Oath  of  commissioners  ...................................................  3370 

Offer  to  compromise  ............  .  ........................................  3372 

Order  granting  authority  to  sell,  etc  ......................................  3393 

"Owner"  defined  ............  .  ........  .  .................................  3358 

P. 

1'arties,  appearance  of  ..................................................  3364 

how  designated  .................................................  3358 

Payment,  deposit  of  money  is  ............................................  3371 

"Person"  defined  ......................................................  3353 

Petition,  for  condemnation  ..........................  .  ...................  3360 

for  condemnation,  upon  whom  to  be  served  ......................  3361 

for  leave  to  sell,  etc  ............................................  3391 

to  have  notice  annexed  ................................  .  .......  3361 

Plaintiff's  appeal  from  judgment.  .  .  «  ....................................  3376 


INDEX. 

SMKIOV. 

Possession,  of  premises,  delivery  of 3373 

of  premises,  when  plaintiff  may  take 3371 

of  property  on  giving  security 3379 

Practice  in  cases  not  provided  for 3382,  3396 

Proceedings,  abandonment  of. 3374 

for  sale,  etc.,  of  corporate  property 3390-3397 

of  commissioners 3370 

Public  use,  property  taken  for,  proceedings  regulated  3359 

"Real  property"  denned 3358 

for  public  use,  taking  of,  regulated 3359 

Referee,  in  proceedings  to  sell,  etc 3392 

may  be  appointed  to  try  issues 3367 

Rehearing  before  same  commissioners 3371 

Repealing  clause 3383 

Report  of  commissioners 3370 

of  commissioners,  confirmation,  etc.,  of 3371 


Sale,  etc.,  petition  for  leave  to  make  3391 

of  corporate  property .   3390-3397 

Security  for  possession  of  property 3379 

Service  of  petitions  and  notice  of  condemnation 3362 

Setting  aside  commissioners' report 3371 

Stay  on  appeal ....  3375 

T. 

Terms  denned 3358 

Trial  of  issues  on  condemnation 3367 

V. 

Verification  of  petitions  and  answer •••  ••••  •••• 3366 

w. 

Writ  of  assistance ^, ..... 3373 


CHAP*  677. 

AOT   relating  to   the   construction    of   statutes   constituting 
chapter  one  of  the  general  laws. 

by  the  Governor  May  18,   1892.     Passed,  three-fifths  being  present, 

The  People  of  the  Siate  of  Naw  York,  represented  in  Senate  and 
Assembly,  do  enact  as  follows: 


CHAPTER  I  OP  THE  GENERAL 
THR  STATUTORY  CONBTRUOTIOU  LAW. 

1.  buort  title  ;  extent  of  application. 

2.  Property. 

8.  Real  property. 

4.  Personal  property. 

5.  Person. 

6.  Judge. 

7.  Lunacy  ;  idiocy. 

8.  Gender  ;  number  ;  tense. 

fi.  Heretofore  ,  hereafter  ;  now, 

10.  Last  ;  preceding  ;  next  i  following. 

11.  Folio. 

12.  Writing;  signature. 

13.  Seal, 

14.  Oath  ;  affidavit  ;  swear. 

IB.  Acknowledge  ;  acknowledgment. 

16.  Bond  ;  undertaking. 

17.  Choose  ;  elect  ;  appoint. 

18.  Board  composed  of  one  person. 

19.  Meeting  ;  quorum  ;  powers  of  majority. 
SO.  Service  of  notice  upon  board  or  body. 

81.  County  clerk'  register. 

82.  Village. 
88.  State. 

84.  Public  holiday  ;  half-holiday. 

86.  Tear. 

86.  Month. 

87.  Day  ;  mode  of  computing  days  ;  night-time. 

88.  Standard  time. 

89.  Civil  and  criminal  codes. 

30.  Laws  of  England  and  of  the  colony  of  New  Talk. 
81.  Limiting  the  effect  of  repealing  statutes. 
8fl.  Existing  laws  included  in  revision  not  to  be  conatrued  ac  now 
ments. 


THI  STATUTOBY  CONSTBUCTION  LAW. 

88.  Effect  of  revision  upon  laws  passed  at  Mine  •mrioa  or  befon 

ion  takee  effect. 

84.  Alterations  of  titles  and  head  not**. 
86.  Laws  repealed. 
80.  Time  of  taking  effect. 

SacTioir  1.  Short  title;  extent  of  application.— This  chapter 

lhall  be  known  as  the  statutory  construction  law,  and  is  applicable  to 
every  statute  unless  its  general  object,  or  the  context  of  the  language 
construed,  or  other  provisions  of  law  indicate  that  a  different  mean- 
ing or  application  was  intended  from  that  required  to  be  given  by 
this  chapter. 

§  2.  Property. —  The  term  property  includes  real  and  personal 
property. 

§  3.  Real  property. —  The  term  real  property  includes  real  estate, 
lands,  tenements  and  hereditaments,  corporeal  and  incorporeal. 

§  4.  Personal  property. —  The  term  personal  property  includes 
chattels,  money,  things- in  action,  and  all  written  instruments  them- 
lelves,  as  distinguished  from  the  rights  or  interests  to  which  they  re- 
late, by  which  any  right,  interest,  lien  or  incumbrance  in,  to  or  upon 
property,  or  any  debt  or  financial  obligation  is  created,  acknowledged, 
evidenced,  transferred,  discharged  or  defeated,  wholly  or  in  part,  and 
everything,  except  real  property,  which  may  be  the  subject  of  owner- 
ship. The  term  chattels  includes  goods  and  chattels. 

§  5.  Person. — The  term  person  includes  a  corporation  and  a  joint 
stock  association.  When  used  to  designate  a  party  whose  property 
may  be  the  subject  of  any  offense,  the  term  person  also  includes  the 
state,  or  any  other  state,  government  or  country  which  may  lawfully 
own  property  in  the  state. 

§  6.  Judge. —  The  term  judge  includes  every  judicial  officer  au- 
thorized, alone  or  with  others,  to  hold  or  preside  over  a  court  of 
record. 

§  7.  Lunacy;  idiocy. —  The  terms  lunatic  and  lunacy  include 
every  kind  of  unsoundness  of  mind  except  idiocy. 

§  8.  Gender;  number;  tense. —  Words  of  the  masculine  gender 
include  the  feminine  and  the  neuter,  and  may  refer  to  a  corporation, 
or  to  a  board  or  other  body  or  assemblage  of  persons:  and,  when  the 
sense  so  indicates,  words  of  the  neuter  gender  may  refer  to  any 
gender.  The  term  men  includes  boys  and  the  term  women  include! 
girls. 

Words  in  the  singular  number  include  the  plural,  and  in  the  plnraJ 
number  include  the  singular. 

Words  in  the  present  tense  include  the  future. 

(9.  Heretofore;  hereafter;  now. —  Each  of  the  terms,  hereto- 

I 


THE  STATUTORY  OOITSTKUCTION  LA.W. 

lore,  and  hereafter,  in  any  provision  of  a  statute,  relates  to  the  timf 
such  provision  takes  effect.  The  term  now  in  any  provision  of  a 
•tatute  referring  to  other  laws  in  force,  or  to  persons  in  office,  or  to 
any  facts  or  ciicumstances  as  existing,  relates  to  the  laws  in  force,  or 
the  person  in  office,  or  to  the  facts  or  circumstances,  existing,  respeot- 
irely,  immediately  before  the  taking  effect  of  such  provision. 

§  10.  Last;  preceding;  next;  following.  —  A  reference  to  the 
last  or  preceding  section,  or  other  provision  of  a  statute,  means  the 
lection  or  other  division  immediately  preceding,  and  a  reference  to 
the  next  or  following  section  or  other  division  of  statute  means  the 
•ection  or  other  division  immediately  following. 

§  11.  Folio. —  A  folio  is  one  hundred  words,  counting  as  a  word 
*ach  figure  necessarily  used. 

§  12.  Writing ;  signature. —  The  terms  writing  and  written  in- 
clude every  legible  representation  of  letters  upon  a  material  substance, 
except  when  applied  to  the  signature  of  an  instrument.  The  term 
•ignature  includes  any  memorandum,  mark  or  sign,  written  or  placed 
upon  any  instrument  or  writing  with  intent  to  execute  or  authenticate 
•uch  instrument  or  writing. 

§  13.  Seal. —  The  private  seal  of  a  person,  other  than  a  corporation, 
to  any  instrument  or  writing  shall  consist  of  a  wafer,  wax  or  other 
iimilar  adhesive  substance  affixed  thereto,  or  of  paper  or  other  similar 
•nbstance  affixed  thereto,  by  mucilage  or  other  adhesive  substance,  or 
of  the  word  "seal/'  or  the  letters  "~L.  S.,"  opposite  the  signature. 

A  seal  of  a  court,  public  officer  or  corporation  may  be  impressed 
directly  upon  the  instrument  or  writing  to  be  sealed,  or  upon  wafer, 
wax  or  other  adhesive  substance  affixed  thereto,  or  upon  paper  or  other 
similar  substance  affixed  thereto  by  mucilage  or  other  adhesive  sub- 
gtauoe.  An  instrument  or  writing  duly  executed,  in  the  corporate  name 
of  a  corporation,  which  shall  not  have  adopted  a  corporate  seal,  by 
the  proper  officers  of  the  corporation  under  their  private  seals,  skall  be 
deemed  to  have  been  executed  under  the  corporate  seal. 

§  14.  Oath  ;  affidavit ;  swear. —  The  terms  oath  and  affidavit 
include  every  mode  authorized  by  law  of  attesting  the  truth  of  that 
which  is  stated. 

The  term  swear  includes  every  mode  authorized  by  law  of  adminis- 
tering an  oath.  When  an  affidavit  is  authorized  or  required  it  may  be 
•worn  to  before  any  officer  authorized  by  law  to  take  the  acknowledg- 
ment of  deeds  in  this  state,  unless  a  particular  officer  is  specified  be- 
fore whom  it  is  to  be  taken. 

§  15.  Acknowledge  ;  acknowledgment. —  When  the  execution 
of  any  instrument  or  writing  is  aucuoriaed  or  required  by  law  to  bt 

3 


THE  ST.A.TUTOB.Y  OOJT&TRDCTIOJT  LAW. 

acknowledged,  or  to  be  proven  BO  as  to  entitle  it  to  be  filed  or  recorded 
in  a  public  office,  the  acknowledgment  may  be  taken  or  the  proo! 
made  before  any  officer  then  and  there  authorized  to  take  the  acknowl- 
edgment or  proof  of  the  execution  of  a  deed  of  real  property  to  en- 
title  it  to  be  recorded  in  a  county  clerk's  office,  and  shall  be  made  and 
certified  in  the  same  manner  as  such  acknowledgment  or  proof  of' 
such  deed. 

The  term  acknowledge  and  acknowledgment,  when  used  with  refer- 
ence to  the  execution  of  an  instrument  or  writing  other  than  a  deed 
of  real  property,  includes  a  compliance  with  the  provisions  of  this 
section  by  either  such  proof  or  acknowledgment. 

§  16.  Bond  ;  undertaking. —  A  provision  of  law  authorising  or  re- 
quiring a  bond  to  be  given  shall  be  deemed  to  have  been  complied  with 
by  the  execution  of  an  undertaking  to  the  same  effect 

§17.  Choose;  elect;  appoint. —  The  term  choose  includes  elect, 
and  appoint. 

g  18.  Board  composed  of  one  person. —  A  reference  to  several 
offioern  of  a  municipal  corporation  holding  the  same  office,  or  to  a 
board  of  such  officers,  shall  be  deemed  to  refer  to  the  single  officer 
holding  ench  office,  when  but  one  person  is  chosen  to  fill  «uch  office 
in  pursuance  of  law. 

§  19.  Meeting;  quorum;  powers  of  majority. —  Whenever  three 
or  more  public  officers  are  given  any  power  or  authority,  or  three  or 
more  persons  are  charged  with  any  public  duty  to  be  performed  or 
exercised  by  them  jointly  or  as  a  board  or  similar  body,  a  majority  of 
all  such  persons  or  officers  at  a  meeting  duly  held  at  a  time  fixed  by 
law,  or  by  any  by-law  duly  adopted  by  such  board  or  body,  or  at  any 
duly  adjourned  meeting  of  such  meeting,  or  at  any  meeting  duly  held 
upon  reasonable  notice  to  all  of  them,  may  perform  and  exercise  such 
power,  authority  or  duty,  and  if  one  or  more  of  such  persons  or  officers 
shall  have  died  or  have  become  mentally  incapable  of  acting,  or  shall 
refuse  or  neglect  to  attend  any  such  meeting,  a  majority  of  the  whole 
number  of  such  persons  or  officers  shall  be  a  quorum  of  such  board  or 
body,  and  a  majority  of  a  quorum,  if  not  less  than  a  majority  of  the 
whole  number  of  such  persons  or  officers  may  perform  and  exercise 
any  such  power,  authority  or  duty.  Any  such  meeting  may  be  ad- 
journed by  a  less  number  than  a  quorum.  A  recital  in  any  order 
resolution  or  other  record  of  any  proceeding  of  such  a  meeting  that 
such  meeting  had  been  so  held  or  adjourned,  or  that  it  had  been  held 
upon  such  notice  to  the  members,  shall  be  presumptive  evidence  thereof. 

§  20.  Service  of  notice  upon  body  or  board. — When  a  notice  is 
required  to  be  given  to  a  board  or  body  service  of  such  notice  upon  the 
clerk  or  chairman  thereof  shall  be  sufficient. 

§  21.  County  clerk;  register. — Any  act  done  in  pursuance  of  law 
by  the  register  of  a  county  shall  be  deemed  to  be  a  compliance  with 
any  provision  of  law  authorizing  or  requiring  such  act  to  be  done  by 
tihe  county  clerk  of  such  county,  and  any  instrument  or  writing  filed, 
entered  or  recorded  in  pursuance  of  law  in  the  office  of  a  register  of  a 

4 


THE  STATUTORY  CONSTRUCTION  LAW. 

county,  shall  be  deemed  to  be  a  compliance  with  any  provision  of  law 
authorizing  or  requiring  such  paper  to  be  filed,  entered  or  recorded, 
as  the  case  may  be,  in  the  office  of  the  clerk  of  such  county. 

§  22.  Village. — The  term  village  means  an  incorporated  village. 

§  23.  State;  territory. — The  term  state,  when  used  generally  to  include 
every  state  of  the  United  States,  includes  also  every  territory  of  the 
United  States  and  the  District  of  Columbia.  The  term  territory  when 
used  generally  to  include  every  territory  of  the  United  States,  includes 
also  the  District  of  Columbia. 

§  24.  Public  holidays;  half  holidays.— The  term  holiday  includes 
the  following  days  in  each  year;  the  first  day  of  January,  known  as 
New  Year's  day;  the  twelfth  day  of  February,  known  as  Lincoln's 
birthday;  the  twenty-second  day  of  February,  known  as  Washington's 
birthday;  the  thirtieth  day  of  May,  known  as  Memorial  day;  the 
fourth  day  of  July,  known  as  Independence  day;  the  first  Monday  of 
September,  known  as  Laborday,  and  the  twenty-fifth  day  of  December, 
known  as  Christmas  day,  and  if  either  of  such  days  is  Sunday,  the 
next  day  thereafter;  each  general  election  day  and  each  day  appointed 
by  the  president  of  the  United  States  or  by  the  governor  of  this  state 
as  a  day  of  general  thanksgiving,  general  fasting  and  prayer,  or  other 
general  religious  observances.  The  term,  half-holiday,  includes  the 
period  from  noon  to  midnight  of  each  Saturday  which  is  not  a  holiday. 
The  days  and  half  days  aforesaid  shall  be  considered  as  the  first  day 
of  the  week,  commonly  called  Sunday,  and  as  public  holidays  or  half- 
holidays,  for  all  purposes  whatsoever  as  regards  the  transaction  of 
business  in  the  public  offices  of  this  state,  or  counties  of  this  state. 
On  all  other-  days  and  half  days,  excepting  Sundays,  such  offices  shall 
be  kept  open  for  the  transaction  of  business.  Where  a  contract  by  its 
terms  requires  the  payment  of  money  or  the  performance  of  a  con- 
dition on  a  public  holiday,  such  payment  may  be  made  or  condition 
performed  on  the  next  business  day  succeeding  such  holiday,  with  the 
.  same  force  and  effect  as  if  made  or  performed  in  accordance  with  the 
terms  of  the  contract. 

Amended  by  ch.  614  of  1897.     In  effect  October  1, 1897. 

Amended  by  chap.  39  of  1902.     In  effect  Feb.  20,  1902. 

§  2.  Chapter  twenty-seven  of  the  laws  of  eighteen  hundred  and  sev- 
enty-five, chapter  thirty  of  the  laws  of  eighteen  hundred  and  eighty-one, 
chapter  two  hundred  and  eighty-nine  of  the  laws  of  eighteen  hundred 
and  eighty-seven  and  chapter  six  hundred  and  three  of  the  laws  of 
eighteen  hundred  and  ninety-five,  are  hereby  repealed. 

Chap.  614  of  1897. 

§  25.  Year. — Time  shall  continue  to  be  computed  in  this  state  ac- 
cording to  the  Gregorian  or  new  style.  The  first  day  of  each  year  after 
the  year  seventeen  hundred  and  fifty-two  is  the  first  day  of  January, 
according  to  such  style.  For  the  purpose  of  computing  and  reckoning 
the  days  of  the  year  in  the  same  regular  course  in  the  future,  every 
year,  the  number  of  which  in  the  Christian  era  is  a  multiple  of  four, 
is  a  bissextile  or  leap  year  consisting  of  three  hundred  and  sixty-six 
days,  unless  such  number  of  the  year  is  a  multiple  of  one  hundred  and 
the  first  two  figures  thereof  treated  as  a  separate  number  is  not  a 

Se«  chap.  6*3  of  1896,  making  the  12th  day  of  February  known  as  Lincoln'^  birthday,  a 
pnblic  holiday. 


THE  STATUTORY  CONSTRUCTION  LAW. 

iple  of  four,  and  every  year  which  is  not  a  leap  year  is  a  common 
year  consisting  of  three  hundred  and  sixty-five  days. 

The  term  year  in  a  statute,  contract,  or  any  public  or  private  instru- 
ment, means  three  hundred  and  sixty-dve  days,  but  the  added  day  of 
a  leap  year  and  the  day  immediately  preceding  shall  for  the  purpoM 
of  such  computation  be  counted  as  one  day. 

la  a  statute,  contract  or  public  or  private  instrument,  the  term 
year  means  twelve  months,  the  term  half-year,  six  months,  and  th« 
term  a  quarter  of  a  year,  three  months. 

§  26.  Month. —  In  a  statute,  contractor  public  or  private  Instru- 
ment, unless  otherwise  provided  in  such  contract  or  instrument  01 
by  law,  the  term  month  means  a  calendar  month  and  not  a  lunar  month. 
A  number  of  mouths  after  or  before  a  certain  day  shall  be  computed 
by  counting  such  number  of  calendar  months  from  such  day,  exclusive 
of  the  calendar  month  in  which  such  day  occurs,  and  shall  include 
the  day  of  the  month  in  the  last  month  so  counted  having  the  same 
numerical  order  in  days  of  the  month  as  the  day  from  which  the 
computation  is  made,  unless  there  be  not  so  many  days  in  the  last 
month  so  counted,  in  which  case  the  period  computed  shall  expire 
with  the  last  day  of  the  month  so  counted. 

§  27.  Days ;  mode  of  computing  days ;  night-time — A  cal- 
endar day  includes  the  time  from  midnight  to  midnight.  Sunday 
or  any  day  of  the  week  specifically  mentioned  means  a  calendar  day. 
A  number  of  days  specified  as  a  period  from  a  certain  day  within 
which  or  after  or  before  which  an  act  is  authorized  or  required  to  be 
done  means  such  number  of  calendar  days  exclusive  of  the  calendar 
day  from  which  the  reckoning  is  made.  Sunday  or  a  public  holiday, 
other  than  a  half-holiday,  must  be  excluded  from  the  reckoning  if  ^t 
is  the  last  day  of  any  such  period,  or  if  it  is  an  intervening  day  of 
any  such  period  of  two  days.  In  computing  any  specified  number 
of  days,  weeks  or  months  from  a  specified  event,  the  day  upon 
which  the  event  happens  is  deemed  the  day  from  which  the  reckon 
ing  is  made.  The  day  from  which  any  specified  number  of  <laya, 
weeks  or  months  of  time  is  reckoned  shall  be  excluded  in  making 
the  reckoning.  Night-time  includes  the  time  from  sunset  to  sunrise. 

im'd  by  ch»p.  447  of  1894.     Took  effect  Maj  4,  1894. 

f  -8.  Standard  time. —  The  standard  time  throughout  this  8taU 
ii  that  of  the  seventy-fifth  meridian  of  longitude  west  from  Greenwich, 
and  all  courts  and  public  officers,  and  legal  and  official  proceeding!, 
•hall  he  regulated  thereby.  Any  act  required  by  or  in  pursuance  of 
law  to  be  performed  at  or  within  a  prescribed  time,  shall  be  performed 
according  to  such  standard  time. 

5  29.  Civil  and  Criminal  Codes.— The  term  Oivil  Code  means  tht 
Code  of  Oivil  Procedure.  The  term  Criminal  Oode  means  the  Ood« 
of  Criminal  Procedure. 

9  80.  Laws  of  England  and  of  the  colony  of  New  York.— 

A  itatnte  of  England  or  Great  Britain  shall  not  be  deemed  to  have  had 

ft 


STATUTORY  CONSTRUCTION  LAW. 

any  force  or  effect  in  this  state  since  May  1,  1788.  Acts  of  the  legis- 
lature of  the  colony  of  New  York  shall  not  be  deemed  to  have  had  any 
forC'3  or  effect  in  this  state  since  December  29,  1828. 

The  resolutions  of  the  congress  of  such  colony  and  of  the  convention 
of  the  state  of  New  York,  shall  not  be  deemed  to  be  the  laws  of  thii 
state  hereafter. 

§31.  Limiting1  the  effect  of  repealing  statutes. —  The-  repeal 
hereafter  or  by  this  chapter  of  uny  provision  of  a  statute,  which  re- 
peals any  provision  of  a  prior  statute,  does  not  revive  s-uch  prior  pro- 
vision. The  repeal  hereafter  or  by  this -chapter  of  any  provision  of  a 
statute,  which  amends  a  provision  of  a  prior  statute,  leaves  Buch  prior 
provision  in  force  unless  the  amendatory  statute  be  a  substantial  re- 
enactment  of  the  statute  amended.  The  repeal  of  a  statute  or  part 
thereof  shall  not  affect  or  impair  any  act  done  or  right  accruing,  ac- 
crued or  acquired,  or  liability,  penalty,  forfeiture  or  punishment  in- 
curred prior  to  the  time  such  repeal  takes  effect,  but  the  same  may  be 
asserted,  enforced,  prosecuted  or  inflicted,  as  fully  and  to  the  same  ex- 
tent as  if  such  repeal  had  not  been  effected;  and  all  actions  and  pro- 
ceedings, civil  or  criminal,  commenced  under  or  by  virtue  of  any  pro- 
vision of  a  statute  so  repealed,  and  pending  immediately  prior  to  the 
taking  effect  of  such  repeal,  may  be  prosecuted  and  defended  to  final 
effect  in  the  same  manner  as  they  might  if  such  provisions  were  not 
BO  repealed. 

§  32.  Effect  of  repeal  and  re-enactment. —  The  provisions  of  a 
law  repealing  a  prior  law,  which  are  substantial  re-enactments  of 
provisions  of  the  prior  law,  shall  be  construed  as  a  continuation  of 
euch  provisions  of  such  prior  law,  and  not  as  new  enactments.  If 
any  provision  of  a  law  be  repealed  and,  in  substance,  re-enacted,  a 
reference  in  any  law  to  such  repealed  provision  shall  be  deemed  a 
reference  to  such  re-enacted  provision. 

Am'd  bj  chap.  448  of  1894.    Took  effect  May  8,  1894.. 

§  33.  Effect  of  revision  upon  laws  passed  at  same  session 
or  before  revision  takes  effect. —  No  provision  of  any  chapter  of 
the  revision  of  the  general  laws,  of  which  this  chapter  is  a  part,  shall 
supersede  or  repeal  by  implication  any  law  passed  at  the  same  session 
of  the  legislature  at  which  any  such  chapter  was  enacted,  or  passed 
after  tne  enactment  of  any  such  chapter  and  before  it  shall  have  takee 
effect;  and  an  amendatory  law  passed  at  such  session  or  at  any  sub- 
iequent  session  begun  before  any  such  chapter  takes  effect,  shall  not 
be  deemed  repealed,  unless  specifically  designated  in  the  repealing 
•ckeduie  of  such  chapter. 

T 


THB  STATUTORY  CoNSTBUOTioir  LAW. 


Q  34.  Alterations  of  titles  and  head  notes. —  If  the  title  of  any 

article  or  other  division  of  a  statute,  or  the  head  note  of  a  section 
*h all  be  amended  or  repealed  in  the  body  of  the  statute,  or  if  a  new 
article  or  other  division  having  a  title,  or  a  new  section  having  a  new 
head  note  be  added  to  a  statute,  the  corresponding  title  or  head  note, 
if  any,  in  an  abstract  of  contents  at  the  beginning  of  the  article  or 
other  division  of  the  statute  shall  be  deemed  to  be  correspondingly 
amended  or  repealed,  although  there  be  no  express  reference  thereto. 
§  35.  Laws  repealed. —  Of  the  laws  enumerated  in  the  schedule 
hereto  annexed,  that  portion  specified  in  the  last  column  is  repealed. 

g  36.  Time  of  taking  effect. — This  chapter  shall  take  effect  im- 
mediately. 

SCHEDULE  OF  LAWS  REPEALED. 


SxOTTOira   RBPHAUD. 

IN  REVISION 

SECTIONS. 

Revised  Statutes,  part  I,  chapter 
8,  title  8  

16  

13 

Revised  Statutes,  part  I,  chapter 
19,  title  1  

1,  2,  8,  4,  6.., 

23,  24,  ft 

Revised  Statutes,  part  II,  chapter 
'    4,  title  2  

3  

6. 

Revised  Statutes,  part  II,  chapter 
4,  title  3  

9  

24. 

Revised  Statutes,  part  III,  chapter 
8,  title  17  

27  

Ifl. 

Re  vised  Statutes,  part  III,  chapter 
10,  title  4  

4...  

11. 

Revised  Statutes,  part  IV,  chapter 
2,  title  8  

16  

13. 

Laws  1828,  second  meeting,  61st 
session,.  chapter  20  
Laws  1828,  second  meeting,  61st 

9,10,11  
3  and  4  

8,9. 

27. 

Laws  1857   chapter  636  

3  

6. 

Laws  1874  chanter  321   . 

All  

18. 

27  

8. 

Laws  1884  chapter  14  

All  

26. 

20  

16. 

God*  of  Oivil  Procedure  .  ....... 

29,    788,    960    and 

subdivisions  6,  7, 
8,  15,  17,  21,  22, 
23  and  24  of  sec- 
tion 3343  

18,  16,  8.  4,  i 

Ood«  of  Criminal  Procedure.... 

955,  950,  95?  
8 

7,  21,  23,  aa 

12,  11. 
18,  12,  14. 

SOHIDULK  0V   Lu.W8   IvEPkALEU. 


SlIOriOMI  RlPKALBD. 

IN  REVISION 
SECTIONS. 

261    500   and  sub- 

divisions 9,    10, 
11,  12,  13,  U  and 
15  of  section  718. 

25,  8,  8,  5,  3, 

and  4, 

INDEX  TO  THF  STATUTORY  CONSTRUCTION 

LAW. 


A. 

"  Acknowledge,"  what  it  include* ......  16 

Acknowledgment,  how  certified 16 

of  instrument  other  than  a  deed 15 

who  may  take 16 

"Acknowledgment,"  construed , 15 

Adhesive  substance,  use  of,  for  seal 13 

Adjournment  by  less  than  a  majority  of  a  public  board,  etc I'.' 

of  public  body,  record  of,  as  evidence 19 

Administering  oath,  is  swearing 14 

Affidavit,  before  whom  to  be  sworn  to 14 

"Affidavit,"  what  it  includes 14 

Alteration  and  repeal  of  titles  and  head-notes 34 

Application  of  Statutory  Construction  Law. 1 

"  Appoint,"  included  under  choose 17 

B. 

Bissextile  years,  which  are Si 

Board  composed  of  one  person , 18 

Board,  public,  service  of  notice  ou 20 

Body,  public,  service  of  notice  on 20 

Bond,  an  undertaking  is  a  compliance 16 

"Boys,"  included  under  "men  " • 8 

o. 

Calendar  day,  how  computed • 27 

Chairman  of  board,  service  on,  sufficient 20 

"  Chattels,"  includes  goods  and  chattels 4 

included  under  personal  property 4 

"  Choose,"  includes  elect  and  appoint 17 

Civil  Code,  includes  Code  of  Civil  Procedure 29 

Clerk  of  board,  service  on,  sufficient 20 

"  Code  of  Civil  Procedure,"  Civil  Code  includes 29 

"  Code  of  Criminal  Procedure,"  Criminal  Code  includes 29 

Computation  of  given  number  of  days,  how  made 27 

Congress  of  colony  of  New  York,  resolutions  of,  not  deemed  laws  30 

Construction  of  existing  laws,  re-enacted 82 

of  repealing  statutes 81 

Convention  of  New  York,  what  acts  not  deemed  laws 80 

Corporate  se*l,  what  may  be  used  as 18 

11 


INDBI. 


Corporation,  execution  of  instrument  under  seal  by  officer  of. ...  18 

having  no  corporate  seal 13 

**  Corporation  "  included  under  person 5 

''  Corporeal  hereditaments"  included  under  real  property „ .  3 

Oounty  clerk,  act  of  register  equivalent  to 21 

:( Country,"  when  person  includes 5 

Court  of  record,  judicial  officer  of,  a  judge. 6 

Court  seal,  what  may  be  used  as . , 13 

Criminal  Code,  includes  Code  of  Criminal  Procedure 29 

D. 

Day,  means  a  calendar  day 27 

"  Day,"  mode  of  computing 27 

Days,  a  given  number  of,  how  computed 27 

exclusion  of,  in  computation. 27 

Debt,  is  personal  property 4 

District  of  Columbia,  when  "  state  "  or  "  territory  "  includes. ...  23 

£. 

Effect  of  repealing  statutes 31 

Effect  of  revision  on  laws  passed  at  same  session 83 

"  Elect/'  included  under  choose 17 

English  statutes,  time  limit  of 30 

Exclusion  of  days  in  computation 27 

Existing  laws,  not  construed  as  new  enactments 82 

P. 

Feminine  gender,  how  applied 8 

Figures,  count  of,  in  folios 11 

Financial  obligation  as  personal  property 4 

"  Folio,"  defined 11 

"  Following,"  applied  to  sections  or  statutes 10 

Future  tense,  included  in  present „ 8 

G. 

Gender,  how  applied , 8 

"Girls,"  included  under  "women" 8 

Goods  and  chattels  included  under  goods 4 

"Government,"  when  person  includes 6 

Great  Britain,  time  limit  of  laws  of 80 


Half  holiday,  not  excluded  in  computation 97 

what  is 24 

Half  year  means  six  months 26 

Head-notes  and  titles,  alteration  and  repeal  of 34 

"  Hereafter,"  relation  of,  defined • 

*  Hereditaments,"  included  under  real  property 3 

"  Heretofore,"  relation  of,  defined 9 

"  Holiday,"  what  included  under 24 

when  excluded  in  computation 27 


I. 

Bn 

•  Idiocy,"  defined , 7 

incorporated  village,  intended  by  village 22 

"  1,100,-poreal  hereditaments/'  included  under  real  property 3 

Ihcumbrauce  upon  property,  when  personal  property 4 

Interest  in  property,  when  personal  property 4 

J. 

"  Joint-stock  association,**  included  under  peroon 6 

"Judge,"  defined... 6 

Judicial  officers,  judge  includes 6 

L. 

1 '  Lands,"  included  under  real  property 3 

"  Last,"  applied  to  sections  or  statutes 10 

Laws  of  1892,  effect  of  revision  upon 33 

Laws  of  England,  time  limit  of 30 

Laws  repealed 35 

Leap  year,  extra  day  of,  now  counted 25 

Leap  years,  which  are 25 

Legislature  of  colony  of  New  York,  time  limit  of  acts  of 30 

Letters,  when  included  in  "  writing  " 12 

Lien  on  property,  when  personal  property 4 

Limitation  of  effect  of  repealing  statutes 31 

"  L.  S."  opposite  signature  is  seal , 13 

"  Lunacy,"  defined , 7 

M. 

Masculine  gender,  how  applied 8 

Meeting  and  adjournment  of  public  body,  record  of,  as  evidence..  19 

Meeting  of  public  officers  or  board,  adjournment  of 19 

"  Men/'  includes  "  boys" . 8 

Minutes  of  public  body  as  evidence  of  meeting  and  adjournment.  19 

"Money,"  included  under  personal  property 4 

Month,  means  calendar  month 26 

Months  and  mouth,  how  computed ,....,..,,,......,,,  26 

N. 

Neuter  gender,  what  it  includes 8 

"  New  York  colonial  legislature,"  time  limit  of  acts  of 30 

"Next,"  applied  to  sections  or  statutes ; ..  10 

"  Night-time,"  how  computed 27 

Notice,  service  of,  on  body  or  board 20 

e '  Now,"  relation  of,  defined 0 

Number  of  days,  how  computed 27 

lumber,  words  in  singular,  include  plural 8 

0. 

'  Oath,"  what  it  includes. . . 14 

Offenses,  what  included  under  term  persons  as  applied  to 

Officer  of  corporation,  use  of  private  seal  by 13 

Official  seal,  what  may  be  used  ** 13 

13 


Parties  to  offenses,  included  under  term  person* , .  f 

"  Person,"  defined I 

"  Personal  property,"  included  under  property „ . . . .  8 

what  it  includes 4 

Plural  number,  includes  singular 8 

Powers  of  majority  of  board  of  public  officers,  eto 19 

"  Preceding,"  applied  to  sections  or  statutes 10 

Presiding  officers  of  courts  of  record  are  judges 6 

Present  tense  includes  future 8 

Private  "  seal,"  defined 13 

use  of,  for  corporate  seal 13 

"  Property,"  defined 2 

Public  body  or  board,  service  of  notice  on 20 

Public  holiday,  what  included  under 24 

when  'excluded  in  computation 27 

Public  offices,  etc.,  to  observe  standard  time 28 

Public  officers,  power  of  majority  of  board  to  act 19 

seal,  what  may  be  used  as 18 

Public  seal,  what  may  be  used  as 13 

Q. 

Quarter  year  means  three  months 25 

Quorum  of  public  body 19 


"  Real  estate,"  included  under  real  property 8 

"  Real  property,"  included  under  property 2 

what  included  under 8 

Record  of  meeting  and  adjournment  as  evidence 19 

Register  of  county,  act  of  county  clerk  equivalent  to 21 

Repeal  of  titles  and  head-notes 34 

Repealed  laws,  table  of,  etc 35 

Repealing  statutes,  limit  of  effect  of 81 

Resolution  of  adjournment  as  evidence 19 

Resolutions  of  colony  of  New  York  not  deemed  laws 30 

of  convention  of  New  York  not  deemed  laws 30 

Revision  laws,  when  not  to  affect  laws  passed  at  same  seasion  ...  83 

effect  of,  when  existing  statute  is  re-enacted 32 

Right  to  property,  when  personal  property 4 

s. 

"  Seal/'  defined  and  what  may  be  used  as <  13 

set  out  in  words  constitutes  a  seal 13 

of  a  court,  what  may  be  used  ae 13 

Service  of  notice  on  body  or  board 20 

"  Signature,"  defined ... 1* 

when  not  included  in  writing . , 12 

Singular  number  includes  plural d 

Standard  time,  prescribed 28 

14 


"BUte,"  when  it  inclndei  territory,  etc.. ••••••, ••«••»«•.,••»«  S3 

when  person  includes ••.•.••••••..  • 

Statutes  generally  to  be  construed  with  this  act. 1 

limit  of  effect  of  repealing ••••••••••.  81 

of  England,  time  limit  of .  ....  80 

Statutory  construction  law,  application  of l 

takes  effect  May  18 86 

Sunday  means  a  calendar  day 27 

when  excluded  in  computation 37 

"Swear,"  what  it  includes •••«.....  14 

T. 

"  Tenements,*  included  under  real  property. ..................  8 

Tense,  words  in  present,  include  future 8 

Territory,  includes  District  of  Columbia S3 

" Territory,"  when  included  under  state 98 

"  Things  in  action,"  included  under  personal  property. 4 

Time,  a  given  number  of  days,  how  computed. 87 

application  of,  heretofore,  hereafter  and  now 9 

"  Time,"  computed  according  to  Gregorian  style 26 

standard,  prescribed . 88 

Titles  and  head-notes,  alteration  and  repeal  of..................  84 

Truth,  e very  mode  of  attesting,  is  oath  or  affidavit. .  .«•• 14 

U. 

Undertaking,  complies  with  requirement  of  bood* ••««.»»*.•.•  16 

KJusoundness  of  mind,  what  included  under* fV99fVM •»**.•.•»*  7 

V. 

*  Village,"  means  incorporated  village. ..................  S3 

W. 

Wafer,  use  of,  for  sea!.. ..........*•......  18 

Wax,  use  of,  for  seal 13 

"Written,"  defined 18 

Written  instruments,  distinguished  from  what  they  represent .. . .  4 

"  Written  instruments,"  included  under  personal  property. . •• . .  4 

"Writing,"  defined 13 

"Women,"  includes  "girli" 8 

Y. 

''Tear,'*  how  computed,  eto • • 25 

•natatory,  means  365  days,  etc.... *.  25 

II 


PENAL  CODE— Provisions  affecting  Kailroads  and 

Corporations. 

§  48c.  Appraiser  taking  fee  or  reward.  —  An  appraiser 
appointed  by  virtue  of  the  taxable  tr.msfer.s  law,  who  takes  any  fee  01 
reward  from  an  executor,  administrator,  trustee,  legatee,  next  of  kin, 
or  heir  of  any  decedent,  or  from  any  oilier  person  liable  to  pay  such 
tax,  or  any  portion  thereof,  is  guilty  of  a  misdemeanor. 

Added  by  chap.  692  of  1893.     In  effect  October  1,  1893. 

§  292a.  Penalty  for  sending  messenger  boys  to  certain 
places. —  A  corporation  or  person  employing  messenger  boys  who: 

1.  Knowingly  places  or  permits  to  remain  in  a  disorderly  house,  or 
in  an  unlicensed  saloon,  inn,  tavern  or  other  unlicensed  place  where 
malt  or  spirituous  liquors  or  wines  are  sold,  any  instrument  or  device 
by  which  communication  may  be  had  between  such  disorderly  house, 
salmon,  inn,  tavern  or  unlicensed  place,  and  any  office  or  place ^of  busi- 
ness of  such  corporation  or  person;  or 

2.  Knowingly  sends  or  permits  any  person  to  send  any  messenger 
boy  to  any  disorderly  house,  unlicensed  saloon,  inn,  tavern,  or  other 
unlicensed  place,  where  malt  or  spirituous  liquors  or  wines  are  sold  on 
my  errand  or  business  whatsoever  except  to  deliver  telegrams  at  the 
door  of  such  house,  is  guilty  of  a  misdemeanor,  and  incurs  a  penalty 
of  tifr.y  dollars  to  be  recovered  by  the  district  attorney-. 

Added  by  chap.  692  of  1893.     lu  effect  October  1,  1893. 

§  :>83.  Protecting  civil  and  public  rights. —  A  person  who- 

1.  Excludes  a  citizen  of  this  state,  by  reason  of  race,  color  or  pre- 
vious co  .dition  of  servitude,  from  the  equal  enjoyment  of  any  accom- 
modati  -n.  facility  or  privilege  furnished  by  innkeepers  or  common 
carriers,  or  by  owners,  managers  or  lessees  of  theatres  or  other  places 
of  Mmusemi-nt,  or  by  teachers  and  officers  of  common  schools  and 
public  institutions  of  learning,  or  by  cemetery  associations;  or 

2.  Denies  or  aids  or  incites  another  to  deny  to  any  other  person  be- 
cause of  race,  creed  or  color,  full  enjoyment  of  any  of  the  accommoda- 
tions, advantages,  facilities  and  privileges  of  any  hotel,  inn,  tavern, 

, restaurant,  public  conveyance  on  land  or  water,  theatre  or  other  place 
of  public  resort  or  amusement, 

Is  guilty  of  a  misdemeanor,  punishable  by  fine  of  not  less  than  fifty 
•lollars  nor  more  than  five  hundred  dollars. 
Am'd  by  chap.  692  of  1893.     In  effect  October  1,  1893. 

§  384h.  Hours  of  labor  to  be  required. — Any  person  or  cor- 
poration, 


1.  Who,  contracting  with  the  state  or  a  municipal  corporation, 
shall  require  more  than  eight  hours  work  for  a  day's  labor:  or, 

2.  Who  shall  require  more  than  ten  hours  labor,  including 
one-half  hour  for  dinner,  to  be  performed  within  twelve  con- 
secutive hours,  by  the  employes  of  a  street  surface  and  elevated 
railway  owned  or  operated  by  corporations  whose  main  line  of 
travel  or  routes  lie  principally  within  the  corporate  limits  of 
cities  of  more  than  one  hundred  thousand  inhabitants;  or, 

3.  Who  shall  require  the  employes  of  a  corporation  owning 
or  operating  a  brick  yard  to  work  more  than  ten  hours  in  any 
one  day  or  to  commence  work  before  seven  o'clock  in  the  morn- 
ing, unless  by  agreement  between  employer  and  employe;  or, 

4.  Who  shall  require  the  employes  of  a  corporation  operating 
a  line  of  railroad  of  thirty  miles  in  length  or  over,  in  whole  or 
in  part  within  this  state  to  work  contrary  to  the  requirements 
of  article  one  of  the  labor  law,  is  guilty  of  a  misdemeanor,  and 
on  conviction  therefor  shall  be  punished  by  a  fine  of  not  less 
than  five  hundred  nor  more  than  one  thousand  dollars  for  each 
offense.     If  any  contractor  within   the  state  or  a  municipal 
corporation  shall  require  more  than   eight  hours  for  a  day's 
labor,  upon  conviction    therefor   in   addition  to  such  fine,  the 
contract  shall  be  forfeited  at  the  option  of  the  municipal  cor- 
poration. 

[Added,  ch.  416  of  1897.    To  take  effect  June  2,  1897.] 

§  415a.  Penalty  for  neglect  to  post  schedule  of  ferry  rates. — 
A  person,  corporation  or  association  operating  any  ferry  in 
this  state,  or  between  this  state  and  any  other  state,  operating 
from  or  to  a  city  of  five  hundred  thousand  inhabitants  or  over, 
posting  a  false  schedule  of  ferry  rates,  or  neglecting  to  post  in 
a  conspicuous  and  accessible  place  in  each  of  its  ferry-houses, 
in  plain  view  of  the  passengers,  a  schedule,  plainly  printed  in 
the  English  language,  of  the  rates  of  ferriage  charged  thereon 
and  authorized  by  law  to  be  charged  for  ferriage  over  such 
ferry,  is  guilty  of  a  misdemeanor. 

[Added  by  ch.  692  of  1893.     In  effect  October  1,  1893.] 

§  416.  Unlawful  offers  to  railroad  commissioners  or  their 
employes.  — Any  officer,  agent  or  attorney  of  a  railroad  cor- 
poral ion  who  offers  a  place,  appointment,  position  or  any  other 
consideration  to  a  railroad  commission, .  or  •  to  a  secretary, 
clerk,  agent,  employe  or  expert  employed  by  the  board  of 
railroad  commissioners,  is  guilty  of  a  misdemeanor. 

[In  force  till  October  1, 1893.] 

la 


§  416.  Unlawful  acts  of  and  neglect  of  duty  by  railroad 

officials. — An  officer,  agent,  attorney  or  employe  of  a  railroad  cor- 
poration, who: 

1.  Offers  a  place,  appointment,  position  or«any  other  consideration 
to  a  railroad  commissioner  or  to  a  secretary,  clerk,  agent,  employe  oj 
expert  employed  by  the  board  of  railroad  commissioners;  or 

2.  After  dne  notice,  neglects   or  refuses  to   make  or  furnish  any 
statement  or  report  lawfully  required  by  the  board  of  railroad  commis- 
sioners or  willfully  hinders,  delays  or  obstructs  such  commissioners  in 
the  discharge  of  their  official  duties, 

Is  guilty  of  a  misdemeanor. 

Am'd  by  chap.  692  of  1898.     In  effect  October  1,  1893. 

§  417.  Misconduct  of  railroad  commissioners  and  of  their 
employes.  —  Any  railroad  commissioner,  or  any  secretary,  clerk, 
agent,  expert  or  other  person  employed  by  the  board  of  railroad  com- 
missioners, who : 

1.  Directly  or  indirectly  solicits  or  requests  from  or  recommends 
to   any  railroad   corporation,    or   to   any    officer,    attorney   or   agent 
thereof,  the  appointment  of  any  person  to  any  place  or  position ;  or, 

2.  Accepts,  receives  or  requests,  either  for  himself  or  for  any  other 
person,  any  pass,  gift  or  gratuity  from  any  railroad  corporation;  or, 

3.  Secretly  reveals  to  any  railroad  corporation,  or  to   any  officer, 
member,    or    employe  thereof,  any  information  gained  by  him  from 
any  other  railroad  corporation ; 

Is  guilty  of  a  misdemeanor. 

§418.  Person  unable  to  read  not  to  act  or  be  employed  as  engineer.— -Any 
person  unable  to  read  the  time  tables  of  a  railroad  and  ordinary  hand  writing, 
.who  acts  as  an  engineer  or  runs  a  locomotive  or  train  on  any  railroad  in  this 
State;  or  any  person  who,  in  his  own  behalf,  or  in  the  behalf  of  any  other 
person  or  corporation,  knowingly  employs  a  person  so  unable  to  read  to  act  as 
such  engineer  or  to  run  any  such  locomotive,  is  guilty  of  a  misdemeanor  ;  or 
who  employs  a  person  as  a  telegraph  operator  who  is  under  the  age  of  eigh- 
teen years," or  who  has  less  than  one  year's  experience  in  telegraphing,  to 
receive  or  transmit  a  telegraphic  message  or  train  order  for  the  movement  of 
trains,  is  guilty  of  a  misdemeanor 

Ani'd  by  chap  892  of  1895.    To  go  into  effect  Sept.  1,  1895. 

§  419.  Misconduct  of  officials  or  employes  on  elevated  rail- 
roads —  Any  conductor,  brakeman,  or  other  agent  or  employe  of  an 
elevated  railroad,  who: 

1.  Starts  any  train  or  cars  of  such  railroad,  or  gives  any  signal  or 
order  to  any  engineer  or  other  person  to  start  any  such  train  or  car, 
before  every  passenger  therein  who  manifests  an  intention  to  depart 
therefrom  by  arising,  or  moving  toward  the  exit  thereof,  has  departed 
therefrom;  or  before  every  passenger  on  the  platform  or  station  at 
which  the  train  has  stopped,  who  manifests  a  desire  to  enter  the  train, 
has  actually  boarded  or  entered  the  same,  unless  due  notice  is  given 

2 


by  au  authorized  employe  of  such  railroad  taat  the  train  is  full,  and 
that  no  more  passengers  can  then  be  received ;  or, 

"2.  Obstructs  the  lawful  ingress  or  egress  of  a  passenger  to  or  from 
any  such  car;  or, 

8.  Opens  a  platform  gate  of  any  such  car  while  the  train  is  in  motion, 
or  starts  such  train  before  such  gate  is  iirmly  closed ; 

Is  guilty  of  a  misdemeanor. 

§  420.  Intoxication  or  other  misconduct  of  railroad  or  steam- 
boat employes.  —  1 .  Any  person  who,  being  employed  upon  any  rail- 
way as  engineer,  conductor,  baggaijeninster,  brakeman,  switchtender, 
fireman,  bridge-tender,  flagman,  sijnal  man,  or  having  charge  of 
stations,  starting,  regulaiing  01-  r.inuiug  trains  upon  a  railroad,  or, 
being  employed  as  captain,  engineer  or  other  officer  of  a  vessel  pro- 
pelled by  steam,  is  intoxicated  while  engaged  in  the  discharge  of  any 
such  duties ;  or, 

2.  Au  engineer,  conductor,  brakeman,  switch-tender,  or  other  offi- 
cer, agent  or  employe  of  any  railroad  corporation,  who  willfully 
violates  or  omits  his  duty  as  such  officer,  agent  or  employe,  by  which 
human  life  or  safety  is  endangered,  the  punishment  cf  which  is  not 
otherwise  prescribed ; 

Is  guilty  of  a  misdemeanor. 

§  423.  Platforms  £.nd  heating  apparatus  of   passenger  cars. 

—  A  railroad  corporation,  or  any  officer  or  director  thereof  having 
charge  of  its  railroad,  or  any  person  managing  a  railroad  in  this  state, 
or  any  person  or  corporation  running  passenger  cars  upon  a  railroad 
into  or  through  this  state,  who  : 

1.  Fails  to  have  the  platforms  or  ends  of  the  passenger  cars  run 
upon  such  railroad  constructed  in  such  manner  as  will  prevent  pas- 
sengers falling  between  the  cars  when  in  motion;  or, 

2.  Except  temporarily,  in  case  of  accident  or  emergency,  heats  any 
passenger  car,  while  viu  motion,  on  any  such  railroad  more  than  fifty 
miles   in   length,   except   a   narrow-gauge  railroad  which   runs  only 
mixed  trains,  between  October  fifteenth  and  May  first,  by  any  stove 
:r  furnace  inside  of  or  suspended  from  such  car,   except  stoves  of  a 
pattern  and  kind  approved  by  the  board  of  railroad  commissioners  for 
cooking  purposes  in  dining-room  cars,  and  except  within  the  extended 
time  allowed  by  the  railroad  commissioners  in  pursuance  of  law  for 
introducing  other  heating  aparatus ; 

Is  guilty  of  a  misdemeanor. 

§  424.  Guard  posts  ;  automatic  couplers.  —  All  corporations  and 
persons  other  than  employes,  operating  any  steam  railroad  in  this 
state, 

3 


1.  Failing  to  cause  guard  posts  to  be  placed  in  prolongation  of 
the  line  of  bridge  trusses  upon  such  railroad,  so  that  in  case  of  derail- 
ment, the  posts  and  not  the  trusses  shall  receive  the  blow  of  the 
derailed  locomotive  or  car;   or, 

2.  Failing  after  November  first,  eighteen  hundred  and  ninety-two, 
to  equip  all  their  own  freight  cars,  run  and  used  in  freight  or  other 
trains  on  such  railroad,  with  automatic  self-couplers,  or  running  or 
operating  on  such  railroad  any  freight  car  belonging  to  any  such  per- 
son or  corporation,  without  having  the  same  equipped,  except  in  case 
of  accident  or  other  emergency,  with  automatic  self-couplers,  and 
except  within  the  extended  time  allowed  by  the  board  of  railroad  com- 
missioners, in  pursuance  of  law,  for  equipping  such  car  with  such 
couplers,  is  guilty  of  a  misdemeanor,  punishable  by  a  fine  of  five 
hundred  dollars  for  each  offense. 

Amended  by  ch.  664  of  1896.     In  effect  May  14,  1896. 

§  433a.  Lights  upon  swing  bridges. — A  corporation,  company 
or  individual,  owning,  maintaining  or  operating  a  swing  bridge  acm— 
the  Hudson  River,  who  during  the  navigation  season  between  sun- 
down and-  sunrise,  neglects  to  keep  and  maintain  upon  every  such 
bridge  the  lights  required  by  law,  is  guilty  of  a  misdemeanor. 

Added  by  ch.  692  of  1893.     In  effect  October  1,  1893. 

§  447a.  Negligently  furnishing  insecure  scaffolding. — A  person 
or  corporation  employing  or  directing  another  to  do  or  perform  any 
labor  in  the  erection,  repairing,  altering  or  painting,  any  house, 
building  or  structure  within  this  state,  who  knowingly  or  negligently 
furnishes  or  erects  or  causes  to  be  furnished  or  erected  for  the  per- 
formance of  such  labor,  unsafe,  unsuitable  or  improper  for  the  per- 
formance of  such  labor,  unsafe,  unsuitable  or  improper  scaffolding, 
hoists,  stays,  ladders  or  other  mechanical  contrivances;  or  who 
hinders  or  obstructs  any  officer  detailed  to  inspect  the  same,  destroys 
or  defaces  any  notice  posted  thereon,  or  permits  the  use  thereof  after 
the  same  has  been  declared  unsafe  by  such  officer  contrary  to  the  pro- 
visions of  article  one  of  the  labor  law,  is  guilty  of  a  misdemeanor. 

Amended  by  ch.  416  of  1897.     In  effect  June  2,  1897. 

§  447-f.  Bribery  of  labor  representatives. — A  person  who  gives 
or  offers  to  give  any  money  or  other  things  of  value  to  any  duly 
appointed  representative  of  a  labor  organization  with  intent  to  in- 
fluence him  in  respect  to  any  of  his  acts,  decisions,  or  other  duties 
as  such  representative,  or  to  induce  him  to  prevent  or  cause  a  strike 
by  the  employees  of  any  person  or  corporation,  is  guilty  of  a  mis- 
demeanor ;  and  no  person  shall  be  excused  from  attending  and  testi- 
fying, or  producing  any  books,  papers  or  other  documents  before  any 
court  or  magistrate,  upon  any  investigation,  proceeding  or  trial,  for 
a  violation  of  this  section,  upon  the  ground  or  for  the  reason  that  the 
testimony  or  evidence,  documentary  or  otherwise,  required  of  him 
may  tend  to  convict  him  of  a  crime  or  subject  him  to  a  penalty  or 
forfeiture;  but  no  person  shall  be  prosecuted  or  subjected  to  any 
penalty  or  forfeiture  for  or  on  account  of  any  transaction,  matter  or 
thing  concerning  which  he  may- so  testify  or  produce  evidence,  docu- 
mentary or  otherwise,  and  no  testimony  so  given  or  produced  shall 
be  received  against  him  upon  any  criminal  investigation  or  pro- 
ceeding. 

Added  by  ch  659  of  1904.     In  effect  September  1,  1904. 


CHAPTER  XL 

~V\U1)ULENT  INSOLVENCIES  BY  CORPORATIONS  AND  OTHER  FRAtTM 
IN  THEIR   MANAGEMEMT. 

SECTION  590.  Frauds  in  the  organization  of  corporations. 

591.  Fraudulent  issue  of  stock,  scrip,  etc. 

592.  Frauds   in   procuring   organization   of  corporation,    or  increase   of 

capital. 

593.  Acting  for  foreign  corporations  not  authorized  to  do  business  in  this 

state. 

594.  Misconduct  of  directors  of  stock  corporations. 

595.  Misconduct  of  directors  of  banking  corporations. 

596.  Loans  made  in  violation  of  last  section,  not  invalid. 

597.  Sale  or  hypothecation  of  bank  notes  by  officer,  etc. 

598.  Officer  of  bank  putting  excessive  number  of  its  notes  in  circulation. 

599.  Officer  or  agent  of  banking  corporation,  making  guaranty  or  indorse- 

ment, in  its  behalf,  in  certain  case's. 

600.  Bank  officer  overdrawing  his  account. 

601.  Receiving  deposits  in  insolvent  bank. 

602.  Unlawful  investments  by  officers  of  savings  banks. 

603.  Misconduct  by  directors  of  monied  corporations. 

604.  Misconduct  by  banks  and  bankers. 

605.  Unlawful  discount  of  bills  of  forcir  i  bnnks. 

606.  Misconduct  by  officers  of  banking  department. 

607.  Using  dies  and  plates  of  extinct  state  bank. 

609.  Private  banker  using  sign. 

610.  Misconduct  of  officers  and  directors  of  stock  corporations. 

611.  Misconduct  of  officers  and  employes  of  corporation. 

612.  Misconduct  of  officers  and  agents  of  pipe-line  corporations. 

613.  Misconduct  at  corporate  election. 

614.  Presumption  of  knowledge  of  corporate  condition  and  business,  and 

of  assent  thereto  by  directors;  definitions. 

§  590.  Frauds  in  the  organization  of  corporations.  —  A  person 
who ; 

1.  Without  authority  subscribes  the  name  of  another  to  or  inserts 
the  name  of  another  in  any  prospectus,  circular  or  other  advertisement 
or  announcement  of  any  corporation  or  joint  stock  association  existing 

s.  4  a 


or  intended  to  be  formed,  with  intent  to  permit  the  same  to  be  pub- 
lished, and  thereby  to  lead  persons  to  believe  that  the  person  whose 
name  is  so  subscribed  is  an  officer,  agent,  member  or  promoter  of  such 
corporation  or  association  ;  or, 

2.  Signs  the  name  of  a  fictitious  person  to  any  subscription  for  or 
agreement  to  take  stock  in  any  corporation,  existing  or  proposed;  or, 

3.  Signs  to  any  such  subscription  or  agreement  the  name  of  any 
person,  knowing  that  such  person  does  not  intend  in  good  faith  to 
comply  with  the  terms  thereof,  or  under  any  understanding  or  agree- 
ment, that  the  terms  of  such  subscription  or  agreement  are  not  to  be 
complied  with  or  enforced ; 

Is  guilty  of  a  misdemeanc 

§  591.  Fraudulent  issue  of  stock,  etc.— An  officer,  agent,  or  other 
person  in  the  service  of  any  joint-stock  compahy  or  corporation  formed 
or  existing  under  the  laws  of  this  state,  or  of  the  United  States  or  of 
any  state  or  territory  thereof,  or  of  any  foreign  government  or  country, 
who  wilfully  and  knowingly,  with  intent  to  defraud,  either : 

1.  Sells,  pledges  or  issues,  or  causes  to  be  sold,  pledged  or  issued,  or 
signs  or  executes,  or  causes  tq  be  signed  or  executed  with  intent  to 
sell,  pledges  or  issues,  or  causes  to  be  sold,  pledged  or  issued,  any  cer- 
tificate or  instrument  purporting  to  be  a  certificate  or  evidence  of  the 
ownership  of  any  share  or  shares  of  such  company  or  corporation,  or 
any  bond  or  evidence  of  debt,  or  writing  purporting  to  be  a  bond  or 
evidence  of  debt  of  such  company  or  corporation,  without  being  first 
thereto  duly  authorized  by  such  company  or  corporation,  or  contrary 

'  to  the  charter  or  laws  under  which  such  corporation  or  company  exists, 
or  in  excess  of  the  power  of  such  company  or  corporation  or  of  the  limit 
imposed  by  law  or  otherwise  upon  its  power  to  create  or  issue  stock  or 
evidence  of  debt ;  or, 

2.  Reissues,  sells,  pledges  or  disposes  of,  or  causes  to  be  reissued, 
sold,  pledged  or  disposed  of,  any  surrendered  or  canceled  certificates, 
or  other  evidence  of  the  transfer  or  ownership  of  any  such  share  or 
shares,  is  punishable  by  imprisonment  for  [a  term  not  exceeding]  seven 
years,  or  by  a  fine  not  exceeding  three  thousand  dollars,  or  by  both. 

Am'p  ch.  662  of  1892.     In  effect  May  18,  1892. 

§  592.  Frauds  in  procuring  organization,  corporation,  etc.— 

An  officer,  agent  or  clerk  of  a  corporation,  or  of  persons  proposing  to 
organize  a  corporation,  or  to  increase  the  capital  stock  of  a  corporation, 
who  knowingly  exhibits  a  false,  forged  or  altered  book,  paper,  voucher, 
security  or  other  instrument  of  evidence  to  any  public  officer  or  board 
authorized  by  law  to  examine  the  organization  of  such  corporation,  or 
to  investigate  its  affairs,  or  to  allow  an  increase  of  its  capital  with  in- 

5 


§  593.  Acting  for  foreign  corporations  not  authorized  to  do 
business  in  this  state. — Any  person  or  corporation  who 

1.  Acts  as  agent  or  representative  of  any  mortgage  company  or 
co-operative  loan  and  building  association  organized  outside  of  this 
state,  while  such  mortgage  company  or  co-operative  loan  and  building 
association  shall  not  be  authorized  under  a  license  .of  the  superin- 
tendent of  banks  to  do  business  in  this  state,  or 

2.  Acts  as  agent  or  representative  in  this  state  of  a  foreign  corpora- 
tion,  other  than   a   moneyed  corporation,   with  the  words   "  trust," 
"  bank,"  "  banking,"  "  insurance,"  "assurance,"  "  indemnity,"  "  guar- 
antee,"   "  guaranty,"   "  savings,"    "  investment,"    "  loan,"    "  benefit," 
or  any  other  words  or  terms  indicating,  representing  or  holding  out 
such  company  to  be  a  moneyed  corporation  as  a  part  of  its  name  or 
corporate  title,  or  who,  in  connection  with  such  corporation  or  other- 
wise, shall  put  forth  any  sign  containing  said  name,  or  who  shall 
advertise  or  publish  the  said  company  as  doing  business  in  this  state, 
directly  or  indirectly,  through  agent  s  or  otherwise,  while  such  company 
shall  not  be  authorized  under  a  certificate  procured  from  the  secre- 
tary of  state  pursuant  to  section  fifteen  of  the  general  corporation 
law  to  do  business  in  this  state,  is  guilty  of  a  misdemeanor. 

Amended  by  ch.  489  of  1904.     In  effect  April  29,  1904. 

§  594.  (Sub.  7.)  To  receive  in  exchange  for  the  shares,  notes, 
bonds  or' other  evidences  of  debt  of  such  corporation,  shares  of  the 
capital  stock,  notes,  bonds  or  other  evidences  of  debt  issued  by  any 
other  stock  corporation  engaged  in  another  line  of  business  unless 
authorized  by  law  to  make  such  exchange. 

§  603.  Unlawful  investments  by  officers  of  savings  banks. — 

Any  officer  or  trustee  of  a  savings  bank  authorizing  or  making  any 
investment  of  the  funds  of  the  bank  in  securities,  not  authorized  by 
law,  is  guilty  of  a  misdemeanor. 

§  603.  Misconduct  by  directors  of  monied  corporations. — Every 
director  of  a  monied  corporation  who: 

1.  In  case  of  the  fraudulent  insolvency  of  such  corporation,  shall 
have  participated  in  such  fraud;   or, 

2.  Willfully  does  any  act  as  such  director  which  is  expressly  for- 
bidden by  law, -or  willfully  omits  to  perform  any  duty  imposed  upon 
him  as  such  director  by  law; 

Is  guilty  of  a  misdemeanor,,  if  no  other  punishment  is  prescribed 
therefore  by  law. 

The  insolvency  of  a  monied  corporation  is  deemed  fraudulent  unless 
its  affairs  appear  upon  investigation  to  have  been  administered  fairly, 
legallv  and  with  the  sama  care  and  diligence  that  agents  receiving  a 
compensation  for  their  services  are  bound,  by  law,  to  observe.  . 

§  604.  Misconduct  by  banks  and  bankers. — Any  monied  cor- 
poration or  individual  banker  authorized  to  carry. on  the  business  of 
banking  under  the  laws  of  this  state  who : 

1.  I'ereives.  pays  out,  gives  or  offers  in  payment  as  money  to  cir- 
culate, or  who  attempts  to  circulate  as  money,  any  bill,  note  or  other 
evidence  of  debt  issued  or  purporting  to  have  been  issued  by  any  cor- 
poration or  individual,  situated  or  residing  without  this  state,  and 
whifb  bill,  note  or  other  evidence  of  debt  shall,  upon  any  part  thereof, 
purport  to  be  payable  or 'redeemable  at  any  place  or  by  any  corpora- 
tion or  individual  within  this  state  ;  or, 


2.  Issues,  utters  or  circulates,  as  money,  or  in  any  way,  directly  or 
indirectly,  aids  or  assists  in  the  issuing,  uttering  or  circulating  as 
money  within  this  state,  of  any  bank  bill,  note  or  other  evidence  oi 
debt  in  the  similitude  of  a  bank  note  issued  or  purporting  to  have  be  in 
issued  by  any  corporation  or  individual  situated  or  residing  without 
this  state  ;  or  procures  or  receives,  in  any  manner  whatever,  any  such 
bank  bill,  note  or  other  evidence  of  debt,  with  intent  to  issue,  utter  or 
circulate,  or  with  intent  to  aid  in  issuing,  uttering  or  circulating  the 
same  as  money  within  this  state  ;  or, 

3.  Directly  or  indirectly  lends  or  pays  out  for  paper  discounted  or 
purchased  any  bank  bill,  note  or  other  evidence  of  debt,  which  is  not 
received  at  par  by  such  corporation  or  banker  for  debts  due  such 
corporation  or  banker ;  or, 

4.  Issues  or  puts  in  circulation  any  bank  bill  or  note  of  any  such 
corporation  or  banker,  unless  the  same  shall  be  made  payable  on  de- 
mand and  without  interest,    except  bills    of  exchange  on  foreign 
countries  or  places  beyond  the  limits  or  jurisdiction  of  the  United 
States ; 

Is  guilty  of  a  misdemeanor.  Nothing  in  this  section  contained 
shall  be  construed  to  prohibit  any  such  corporation  or  banker  from 
receiving  and  paying  out  such  foreign  bank  bills  as  they  shall  receive 
at  par  in  the  ordinary  course  of  their  business,  or  to  prohibit  such 
corporation  or  banker  from  receiving  foreign  notes  from  their  dealers 
and  customers  in  the  regular  and  ususal  course  of  their  business,  at  a 
rate  of  discount  not  exceeding  that  which  is  or  shall  be  at  the  time 
fixed  by  law,  for  the  redemption  of  the  bills  of  the  banks  of  this  state 
at  their  agencies,  or  from  obtaining  from  the  corporations,  associations 
or  individuals  by  which  such  foreign  notes  are  made,  the  payment  or 
redemption  thereof 

§  605.  Unlawful  discount  of  bills  of  foreign  banks.—  Any  per- 
son, association  or  corporation  within  the  state  who,  directly  or 
indirectly,  on  any  pretense  whatever,  procures  or  receives  or  offers  to 
receive  from  any  corporation  or  person  any  bank  bill  or  note  or  other 
evidence  of  debt  in  the  similitude  of  a  bank  note  issued  or  purporting 
to  have  been  issued  by  any  corporation  or  individual,  situated  or 
residing  without  this  state,  at  a  greater  rate  of  discount  than  is  or 
sha,ll  be  at  the  time  fixed  by  law  for  the  redemption  of  the  bills  of  the 
banks  of  this  state  at  their  agencies,  is  guilty  of  a  misdemeanor. 

§  606.  Misconduct    by    officers    of    banking    department— 

The  superintendent  of  banks,  or  any  officer  in  the  banking  depart- 
ment who  countersigns  bills  or  notes  for'  any  person  or  corporation 
exceeding  the  value  of  the  interest  bearing  stocks  of  the  state  of  New 

7 


York  or  of  the  United  States,  or  other  securities  deposited  with  such 
superintendent  by  such  person  or  corporation  on  account  thereof,  is 
guilty  of  a  felony,  punishable  by  a  fine  of  not  less  than  five  thousand 
dollars  or  by  imprisonment  for  not  less  than  five  years,  or  by  both. 

§  607.  Using  dies  and  plates  of  extinct  state  bank. —  Any  per- 
son who  uses  the  dies  and  plates  of  a  state  bank  in  the  manufacture 
of  notes  and  bills,  after  such  bank  has  become  a  national  bank  in 
pursuance  of  law,  is  guilty  of  a  misdemeanor. 

§  609.  Private  banker  using  sign. —  Any  person  engaged  .n 
banking  in  this  state,  not  subject  to  the  supervision  of  the  superin- 
tjndent  of  banks,  and  not  required  by  law  to  report  to  such  superin- 
tendent, who  was  not  engaged  in  such  banking  before  May  23, — 
1385,  who, 

1.  Uses  an  office  sign  at  the  place  where  such  business  is  transacted, 
Having   thereon   any  artificial   or   corporate   name,    or   other   words, 
indicating  that  such  place  or  office  is  the  place  or  office  of  a  bank ;  or, 

2.  Uses  or  circulates  any  letter-heads,  bill-heads,  blank  notes,  blank 
receipts,  certificates,  circulars  or  any  written  or  printed  paper  what- 
ever, having  thereon  any  artificial  or  corporate  name,  or  other  word  or 
words  indicating  that  such  business  is  the  business  of  a  bank  ; 

Is  guilty  of  a  misdemeanor. 

§  610.  Misconduct  of  officers  and  directors  of  stock  corpora- 
tions. —  An  officer  or  director  of  a  stock  corporation  who  : 

1.  Issues,  participates  in  issuing,  or  concurs  in  a  vote  to  issue  any 
increase  of  its  capital  stock  beyond  the  amount  of  the  capital  stock 
thereof,  duly  authorized  by  or  in  pursuance  of  law ;  or, 

2.  Sells,  or  agrees  to  sell,  or  is  directly  or  indirectly  interested  in  the 
sale  of  any  share  of  stock  of  such  corporation,  or  in  any  agreement  to 
sell  the  same,  unless  at  the  time  of  such  sale  or  agreement  he  is  an 
actual  owner  of  such  share ; 

Is  guilty  of  a  misdemeanor,  punishable  by  imprisonment  for  not  less 
than  six  months  or  by  a  fine  not  exceeding  five  thousand  dollars  or 
by  both. 

§  611.  Misconduct  of  officers  and  employes  of  corporations. 

—  A  director,  officer,  agent  or  employe  of  any  corporation  or  joint- 
stock  association  who : 

1.  Knowingly  receives  or  possesses  himself  of  any  of  its  property 
otherwise  than  in  payment  for  a  just  demand,    and   with  intent  to 
defraud,  omits  to  make  or  to  cause  or  direct  to  be  made  a  full  and  true 
entry  thereof  in  its  books  a"nd  accounts  ;  or, 

2.  Concurs  in  omitting  to  make  any  material  entry  thereof ;  or 

8 


3.  Knowingly  concurs  in  making  or  publishing  any  written  report, 
exhibit  or  statement  of  its  affairs  or  pecuniary  condition,  containing 
any  material  statement  which  is  false;  or, 

4.  Having  the  custody  or  control  of  its  books,  willfully  refuses  or 
neglects  to  make  any  proper  entry  in  the  stock  book  of  such  corpora- 
tion as  required  by  law,  or  to  exhibit  or  allow  the  same  to  be  inspected 
and  extracts  to  be  taken  therefrom  by  any  person  entitled  by  law  to 
inspect  the  same  or  take  extracts  therefrom. 

Anvd  by  chap.  692  of  1893.     In  effect  October  1,  1893, 

5.  If  a  notice  of  an  application  for  an  injunction  affecting  the  prop- 
erty or  business  of  such  joint-stock  association  or  corporation  is  served 
upon  him  omits  to  disclose  the  fact  of  such  service  and  the  time  and 
place  of  such  application  to  the  other  directors,  officers  and  managers 
thereof;  or, 

6.  Refuses  or  neglects  to  make  any  report  or  statement  lawfully 
required  by  a  public  officer ; 

Is  guilty  of  a  misdemeanor. 

§  612.  Misconduct  of  officers  and  agents  of  pipe-line  cor- 
porations. —  Any  officer,  agent  or  manager  of  a  pipe-line  corporation, 

who : 

1.  Neglects  or  refuses  to  transport  any  product  delivered  for  trans- 
portation, or  to  accept  and  allow  a  delivery  thereof  in  the  order  of 
application,  according  to  the  general  rules  of  the  corporation  as  pro- 
vided by  law ;  or, 

2.  Charges,  accepts  or  agrees  to  accept  for  such  receipt,  transporta- 
tion and  delivery,  a  sum   different  from  the  amount  fixed  by  such 
regulations ;  or, 

3.  Allows  or  pays,  or  agrees  to  allow  or  pay,  or  suffers  to  be  allowed 
or  paid  or  repaid,   any  draw-back,  rebate  or  allowance,    so  that  any 
person  shall,  by  any  device,  have  or  procure  any  transportation  of 
products  over  such  pipe-line  at  a  less  rate  or  charge  than  is  fixed  in 
such  regulations; 

Is  guilty  of  a  misdemeanor,  punishable  by  a  fine  not  exceeding  or^e 
thousand  dollars,  or  by  imprisonment  not  exceeding  six  months,  or 
by  both. 

§613.  Misconduct  of  corporate  elections. — Any  person  who: 

1.  Votes  or  issues  a  proxy  to  vote  at  any  meeting  of  the  stockholders 
or  bondholders,   or  both,  of  a  stock  corporation,  upon  any  stock  or 
bond,  if  the  person  in  whose  behalf  such  vote  is  given  shall  not  then 
have  the  title  to  the  stock  represented  by  such  certificate   or  to  'such 
bond,   and  shall  not  have  it  in  his  possession  and  control,  notwith- 
standing such  stock  or  bond  shall  then  stand  on  the  books  of  such 
corporation  in  the  name  of  the  person  in  whose  behalf  such  vote  is 
given ;  or, 

2.  Being  entitled  to  vote  at  such  meeting,  sells  his  vote  or  issues  a 

• 

9 


proxy  to  vote  to  any  person  for  any  sum  of  money  or  thing  of  value ; 
or, 

3.  Acts  as  an  inspector  of  election  at  any  such  meeting  and  violates 
an  oath  taken  by  him,  in  pursuance  of  law  as  such  inspector,  or  vio- 
lates the  provisions  of  an  oath  required  by  law  to  be  taken  by  him  as 
such  inspector,  or  is  guilty  of  any  dishonest  or  corrupt  conduct  as 
such  inspector; 

Is  guilty  of  a  misdemeanor. 

§  614.  Presumption  of  knowledge  of  corporate  condition  and 
business  and  of  assent  thereto  by  directors  ;  definitions. —  It  is 

no  defense  to  a  prosecution  for  a  violation  of  the  provisions  of  this 
chapter,  that  the  corporation  is  a  foreign  corporation,  if  it  carries  on 
business  or  keeps  an  office  therefor  in  this  state. 

The  term  "director"  -as  used  in  this  chapter  includes^  any  of  the 
persons  having,  by  law,  the  direction  or  management  of  the  affairs  of 
a  corporation,  by  whatever  name  described. 

A  director  of  a  corporation  or  joint-stock  association  i|  deemed  to 
have  such  a  knowledge  of  the  affairs  of  the  corporation  or  association 
as  to  enable  him  to  determine  whether  any  act,  proceeding  or  omission 
of  ir,s  directors  is  a  violation  of  this  chapter.  If  present  at  a  meeting 
of  the  directors  at  which  any  act,  proceeding  or  omission  of  such 
directors  in  violation  of  this  chapter  occurs,  he  must  be  deemed  to  have 
concurred  therein,  unless  he  at  th^  time  causes  or  in  writing  requires 
his  dissent  therefrom  to  be  ent  :  id  n  the  minutes  of  the  directors. 
If  absent  from  such  meeting,  he  t.stbe  deemed  to  have  concurred  in 
any  such  violation,  if  the  facts  '•o-.sti'-ting  such  violation  appear  on 
the  record  or  minutes  of  the  proceedings  ;f  the  board  of  directors,  and 
he  remains  a  director  of  the  corporation  for  six  months  thereafter  with- 
out causing  or  in  writing  requiring  his  dissent  <from  such  violation  to 
be  entered  on  such  record  or  minutes. 

§  615.  Sale  of  passage  tickets  on  vessels  and  railroads  for- 
bidden except  by  agents  specially  authorized. — No  person 
shall  issue  or  sell,  or  offer  to  sell,  any  passage  ticket,  or  an  in- 
strument giving  or  purporting  to  give  any  right,  either  abso- 
lutely or  upon  any  condition  or  contingency  to  a  passage  or 
conveyance  upon  any  vessel  or  railway  train,  or  a  berth  or 
state-room  in  any  vessel,  unless  he  is  an  authorized  agent  of 
the  owners  or  consignees  of  such  vessel,  or  of  the  company  run- 
ning such  train,  except  as  allowed  by  sections  six  hundred  and 
sixteen  and  six  hundred  and  twenty- two;  and  no  person  is 
deemed  an  authorized  agent  of  such  owners,  consignees  or  com- 
pany, within  the  meaning  of  the  chapter,  unless  he  has  received 

10 


authority  in  writing  therefor,  specifying  the  name  of  the  com- 
pany, line,  vessel  or  railway  for  which  he  is  authorized  to  act 
as  agent,  and  the  city,  town  or  village  together  with  the  street 
tod  street  number,  in  which  his  office  is  kept,  for  the  sale  of 
tickets. 
[Added,  ch.  506  of  1897.  To  take  effect  Sept.  1, 1897.] 

§  616.  Sales  by  authorized  agents  restricted. —No  person, 
except  as  allowed  in  section  six  hundred  and  twenty-two,  shall 
ask,  take  or  receive  any  money  or  valuable  thing  as  a  consider- 
ation for  any  passage  or  conveyance  upon  any  vessel, or  railway 
train,  or  for  the  procurement  of  any  ticket  or  instrument  giv- 
ing or  purporting  to  give  a  right,  either  absolutely  or  upon 
a  condition  or  contingency,  to  a  passage  or  conveyance  upon  a 
vessel  or.  rail  way  train,  or  a  berth  or  state-room  on  a  vessel, 
unless  he  is  an  authorized  agent  within  the  provisions  of  the 
last  section;  nor  shall  any  person,  as  such  agent,  sell  or  offer  to 
sell  any  such  ticket,  instrument,  berth  or  state-room,  or  ask, 
take  or  receive  any  consideration  for  any  such  passage,  con- 
veyance, berth  or  state-room,  excepting  at  the  office  designated 
in  his  appointment,  nor  until  he  has  been  authorized  to  act  as 
such  agent  according  to  the  provisions  of  the  last  section,  nor 
for  a  sum  exceeding  the  price  charged  at  the  time  of  such  sale 
by  the  company,  owners  or  consignee  of  the  vessel  or  railway 
mentioned  in  the  ticket.  Nothing  in  this  section  or  chapter 
contained  shall  prevent  the  properly  authorized  agent  of  any 
other  transportation  company  from  purchasing  from  the  prop- 
elry  authorized  agent  of  any  other  transporation  company  a 
ticket  for  a  passenger  to  whom  he  may  sell  a  ticket  to  travel 
over  any  part  of  the  line  for  which  he  is  the  properly  author- 
ized agent,  so  as  to  enable  such  passenger  to  travel  to  the 
place  or  junction  from  which  his  ticket  shall  read.  Every  per- 
so.i  who  shall  have  purchased  a  passage  ticket  from  an  author- 
ized agent  of  a  railroad  company,  which  shall  not  have  been 
used,  or  shall  have  been  used  only  in  part,  may,  within  thirty 
days  after  the  date  of  the  sale  of  said  ticket,  present  the  same, 
unused  or  partly  used,  for  redemption,  at  the  general  office 
of  the  railroad  company  which  issued  said  ticket,  or  at  the 
ticket  office  where  said  ticket  was  sold,  or  at  the  ticket 

lOa 


office  at  the  point  to  which  the  ticket  has  been  used.  If 
said  ticket,  wholly  unused,  shall  be  presented  for  redemp- 
tion at  the  ticket  office  where  sold,  the  same  shall  be  then 
and  there  redeemed  by  the  agent  in  charge  of  said  ticket 
office  at  the  price  paid  for  said  ticket.  If  said  ticket, 
partly  used,  shall  be  presented  for  redemption  at  the  ticket 
office  where  sold,  or  at  the  ticket  office  at  the  point  to  which 
used,  the  ticket  agent  at  either  of  said  offices,  upon  the  de- 
livery of  said  ticket,  shall  issue  to  the  holder  thereof  a  receipt, 
properly  describing  said  ticket  and  setting  forth  the  date  of  the 
receipt  of  said  ticket,  and  the  name  of  the  person  from  whom  re- 
ceived, and  shall  thereupon  forthwith  transmit  said  ticket  for  re- 
demption to  the  general  office.  It  shall  be  the  duty  of  every  rail- 
road company  to  redeem  tickets  presented  for  redemption,  as 
in  this  section  provided  for,  promptly  and  within  not  to  ex- 
ceed thirty  days  from  the  date  of  presentation  at  the  general 
office  or  from  the  date  of  the  aforesaid  receipt.  A  wholly  un- 
used ticket  shall  be  redeemed  at  the  priqe  paid  therefor.  A 
partly  used  ticket  shall  be  redeemed  at  a  rate  which  shall  be 
equal  to  the  difference  between  the  price  paid  for  the  whole 
ticket  and  ,  the  cost  of  a  ticket  of  the  same  class  between 
the  points  for  which  said  ticket  was  actually 'sold.  Mile- 
age books  shall  be  redeemed  within  thirty  days  after  the  date 
of  the  expiration  thereof  in  the  same  manner.  Every  railroad 
which  shall  wrongfully  refuse  redemption,  as  in  this  section 
provided  for,  shall  forfeit  to  the  aggrieved  party  fifty  dollars, 
which  sum  may  be  recovered,  together  with  the  amount  of  re- 
demption money  to  which  the  part}7  is  entitled,  in  an  action  in 
any  court  of  competent  jurisdiction,  together  with  costs;  but  no 
such  action  can  be  maintained  unless  commenced  within  .one 
year  after  the  cause  of  action  accrued. 
[Am'd,  cb.  506  .of  1897.  To  take  effect  Sept.  1,  1897.] 

§  629.  Issuing  fictitious  bills  of  lading,  receipts  and  vouch- 
ers.—  A  person  who : 

1.  Being  the  master,  owner  or  agent  of  any  vessel,  or  officer  or 
agent  of  any  railway,  express  or  transportation  company,  or  otherwise 
being  or  representing  any  carrier,  who  delivers  any  bill  of  lading, 
receipt  or  other  voucher,  by  which  it  appears  that  merchandise  of  any 
kind  has  been  shipped  on  board  a  vessel,  or  delivered  to  a  railway, 
express  or  transportation  company,  or  other  carrier,  unless  the  same 
has  been  so  shipped  or  delivered  and  at  "ho  time  actually  under  the 
control  of  such  carrier,  or  master  owner  or  agent,  of  such  vessel,  or 
of  some  officer  or  agent  of  such  company,  to  be  forwarded  as  expressed 
in  such  bill  of  lading,  receipt  or  voucher ;  or, 

10  b 


2.  Carrying '  on  the  business  of  a  warehouseman,  wharfinger  or 
other  depository  of  property,  who  issues  any  receipt,  bill  of  lading  or 
other  voucher  for  merchandise  of  any  kind  which  has  not  been  act- 
ually received  upon  the  premises  of  such  person,  and  is  not  under  his 
actual  control  at  the  time  of  issuing  such  instrument,  whether  such 
instrument  is  issued  to  a  person  as  being  the  owner  of  such  merchan- 
dise, or  as  security  for  any  indebtedness  f 

Is  guilty  of  a  misdemeanor,  punishable  by  imprisonment,  not  exceed- 
ing one  year,  or  by  a  fine  not  exceeding  one  thousand  dollars  or  by 
both. 

£  G26.  Sales  of  passenger  tickets  at  excessive  rates,  etc. — A  person  who, 

1.  Sells  or  causes  to  be  sold,  a  passage  ticket,  or  order  for  such  ticket  on  any 
railway,  vehicle  or  vessel',  to  any  emigrant  passenger  at  a  higher  rate  than  one 
and  a  quarter  cents  per  mile;  or 

2.  Takes  payment  for  any  such  ticket  or  order  for  a  ticket  under  a  false  repre- 
sentation as  to  the  class  of  the  ticket,  whether  emigrant  or  first-class;  or 

8.  Directly  or  indirectly,  by  means  of  false  representations,  purchases  or 
receives  from  an  emigrant  passenger  any  such  ticket;  or 

4.  Procures  or  solicits  any  such  passenger  having  such  a  ticket,  to  exchange 
the  same  for   another    passenger  ticket,  or  to   sell  the    same  and  purchase 
some  other  passenger  ticket,  or 

5.  Solicits  or  books  any  passenger  arriving  at  the  port  of  New  York  from  a 
foreign  country,  before  such  passenger  has  left  the  vessel  on  which  he  has  ar- 
rived, or  enters  or  goes  on  board  any  vessel  arriving  at  the  port  of  New  York 
f ron?  a  foreign  country,  having  emigrant  passengers  on  board,  for  the  purpose 
of  soliciting  or  booking  any  such  passengers,  a  person  or  agent  of  a  corporation 
°mploying  any  person  for  the  purpose  of  booking  such  passenger  before  leav- 
ing the  ship; 

Is  guilty  of  a  misdemeanor. 

§  627.  "  Company  "  defined — The  term  "  company;"  as  used  in  this  chapter. 
includes  all  corporations,  whether  created  under  the  laws  of  this  state,  or  of 
the  United  States,  or  of  those  of  any  other  state  or  nation. 

§  634a.  Failure  to  issue  bill  of  lading.— Any  person  who,  being  the.  owner, 
master  or  agent  of  any  vessel  transporting  merchandise  or  property  between  ports 
of  this  state,  departs  with  such  vessel  or  causes  such  vessel  to  depart  from  the  port 
where  such  merchandise  or  property  is  taken  on  board,  without  giving  or  tendering 
to  the  shipper  of  such  merchandise  or  property,  if  a  bill  of  lading  be  demanded 
by  such  shipper,  a  bill  of  lading  or  shipping  document  as  provided  by  section 
forty-one  of  the  domestic  commerce  law,  is  guilty  of  a  misdemeanor. 

[Added  by  chap.  156  of  1893.] 

§  635.  Injuries  to  railroad  tracks,  et  cetera. — A  person  who  willfully  : 

1.  Displaces,   loosens,  removes,  injures  or  destroys  any  rail,  sleeper,  switch, 
bridge,  viaduct,  culvert,  embankment  or  structure  or  any  part  thereof,  attached, 
appertaining  to  or  connected  with  any  railway,  or  by  any  other  means  attempts 
to  wreck,  destroy,  or  so  damage  any  car,  tender,  locomotive  or  railway  train  or 
part  thereof,  while  moving  or  standing  upon  any  railway  track  in  this  state,  as  to 
render  such  car,  tender,  locomotive  or  railway  train  wholly  or  partially  unfit  for 
its  ordinary  use,  whether  operated  by  steam,  electricity  or  other  power  ;  or 

2.  Places  any  obstruction  upon  the  track  of  any  such  railway  ;  or 

3.  Willfully  destroys  or  breaks  any  guard  erected  or  maintained  by  a  railroad 
corporation  as  a  warning  signal  for  the  protection  of  its  employes  ;  or 

4.  Willfully  discharges  a  loaded  firearm  or  projects,  or  throws  a  stone  or  other 
missile  at  a  railway  train,  or  at  a  locomotive,  car  or  vehicle  standing  or  moving 
upon  a  railway  ;  or 

5.  Willfully  displaces,  removes,  cuts,  injures  or  destroys  any  wire,  insulator, 
pole,  dynamo,  motor,  locomotive,  or  any  part  thereof,  attached,  appertaining  to 
or  connected  with  any  railway  operated  by  electricity,  or  willfully  interferes  with 
or  interrupts  any  motive  power  used  in  running  such  road,  or  willfully  places  any 
obstruction  upon  the  track  of  such  railroad,  or  willfully  discharges  a  loaded  tire- 

11 


nr-'i.  or  projects  or  throws  a  stone  or  anv  other  missile  at,  such  railway  tra'n  or 
locomotive,  car  or  vehicle,  standing  or  moving  upon  such  railway  ;  or 

6.  Removes  a  journal  brass  from  a  car  while  standing  upon  any  railroad  track 
in  this  state,  without  auth<>rifv  from  some  person  who  has  a  right  to  give  such 
authority,  is  punishable  as  follows  :  First,  if  thereby  the  safety  of  any  person  is 
endangered,  by  imprisonment  for  not  more  than  twenty  years.  Second,  In  every 
other  case  by  imprisonment  for  not  more  than  five  years, 

[Am'd.  ch.  183  of  1897.     In  effect  Sept.  1,  1897.] 

§  641.  A  person  who,  either 

1.  Wrongfully  obtains,    or  attempts  to  obtain,  any  knowledge  of  a  tele 
graphic  or  telephonic  message  by  connivance  with  a  clerk,  operator,  messen- 
ger, or  other  employe  of  a  telegraph  or  telephone  company;  or 

2.  Being  such    clerk,    operator,    messenger    or    other    employe,  willfully 
divulges  to  anyone  but  the  persons  for  whom  it  was  intended,  the  contents  or 
the  nature  thereof  of  a  telegraphic  or  telephonic   message  or  dispatch  in- 
trusted to  him  for  the  transmission  or  delivery,  or  of  which  contents  he  may 
in  any  manner  become  possessed,  or  occupying  such  position  in  a  telegraph 
offiVe  si i all  willfully  refuse  or  neglect  duly  to  transmit  or  deliver  messages 
reoe  vj  I  ax  such  office,  except  when  such  telegraphic  or  telephonic  message 
or  dispatch  is  in  aid  of  or  used  to  abet  or  carry  on  any  unlawful  business  or 
traffic,  or  to  perpetrate  any  criminal  offense,  and  when  it  shall  appear  that 
any  offense  at  law  or  unlawful  business  or  traffic  is  being  carried  on  or  con- 
ducted in  whole  or  in  part  by  means  of  a  telegraphic  or  telephonic  message  or 
dispatch,  it  shall  be  the  duty  of  any  corporation  or  employe  thereof  having 
knowledge  of  the  same,  to  withhold  such  dispatch  from  delivery  until  the 
person  to  whom  it  is  addressed  shall  be  fully  identified,  and  to  further  furnish 
to  any  public  officer  whose  duty  it  is  to  prosecute  any  offense  at  law  so  aided 
and  abetted,  all  information  in   their  possession,   relating  to  said  unlawful 
business  or  traffic;  and  to  further  assist  in  the  identification  of  any  person 
aiding  or  abetting  in  or  conducting  any  such  unlawful  business  or  traffic, 

Is  punishable  by  a  fine  of  not  more  than  one  thousand  dollars,  or  by  im- 
prisonment for  not  more  than  six  months,  or  by  both  such"  fine  and  imprison- 
ment. 

Am'd  by  chap.  727  of  1895.     To  go  into  effect  Sept.  1,  1895. 

§  642.  A  person  who,  willfully,  and  without  authority,  either 

1.  Opens  or  reads,  or  causes  to  be  opened  or  read,  a  sealed  letter,  telegram, 
or  private  paper;  or 

2.  Publishes  the  whole  or  any  portion  of  such  a  letter,  or  telegram,  or  pri- 
vate paper,  knowing  it  to  have  been  opened  or  read  without  authority;  or 

3.  Tak'es  a  letter,  telegram  or  private  paper,  belonging  to  another  or  a  copy 
thereof,  and  publishes  the  whole  or  any  portion  thereof;  or 

4.  Publishes  the  whole  or  any  portion  of  such  letter,  telegram  or  private 
paper,  knowing  it  to  have  been  taken  or  copied  without  authority,  is  guilty 
of  a  misdemeanor. 

Am'd  by  chap.  287  of  1895.    To  take  effect  Sept.  1, 1895. 


THE 

TAX     LAW 


OF  THE 


STATE   OF    NEW   YORK 


BEING 


L.  1896,  Chap.  908,  entitled  "An  Act  in  Relation  to  Taxa- 
tion, Constituting  Chapter  Twenty-four  of  the  General 
Laws,"  with  all  Amendments  and  Additions  thereto 
Passed    during    the    Legislative    Sessions    of 
1897  to   1905,   both   inclusive. 


INCLUDING 


THE    RECORDING    TAX    ACT    OF     1906, 

RELATING  TO  TAXATION  OF   MORTGAGES  OF 
REAL  PROPERTY 


IMPORTANT    AMENDMENTS    TO    THE    STOCK 
TRANSFER  ACT  OF   1905. 


COMPLETELY  INDEXED 

1906 

COMPLETE  EDITION 


BANKS  &  COMPANY 

ALBANY,  N.  Y. 
1905 


COPYBIGHT,    1905, 

BY  BAKER,  VOORHIS  &  COMPANY. 


COPYRIGHT,   1906. 
BY  BAKER,  VOORHIS  &  COMPANY. 


THE  TAX  LAW. 


[WiTH  AMENDMENTS  OP  1897,  1898,  1899,   1900,   1901,   1902,   1903,  1904 
1905  AND   1906.] 


L.  1896,  Chap.  908,  An  Act  in  Relation  to  Taxation,  Constituting 
Chap.  34  of  the  General  Laws. 


CHAPTER  XXIV  OF  THE  GENERAL  LAWS. 

THE  TAX  LAW. 

Article     1.  Taxable  property  and  place  of  taxation.     (§§  1-14.) 

2.  Mode  of  assessment.      (§§  20-47.) 

3.  Equalization  of  assessment  and  levy  of  tax.     (§§  50-59.) 

4.  Collection  of  taxes.     (§§  70-95.) 

5.  Collection  of  nonresident  taxes.     (§§  100-109.) 

6.  Sales  by  comptroller  for  unpaid  taxes  and  redemption   of 

lands.     (§§  120-143.) 

7.  Sales  by  county  treasurers  for  unpaid  taxes  and  redemp- 

tion of  lands.     (§§  150-158.) 

8.  State  board  of  tax  commissioners,  state  board  of  equaliza- 

tion.    (§§  170-177.) 

9.  Corporation  tax.     (§§  180-203.) 

10.  Taxable  transfers.      (§§  220-243.) 

11.  Procedure.     (§§  250-264.) 

12.  Laws  repealed;  when  to  take  effect.     (§§  280-281.) 

13.  Limitation  of  time.      (§  282.) 

14.  Mortgage  debts  secured  by  real  property  within  this  state. 

(§§    290-314.      Added   by   L.  1905,  chap.  729.) 

15.  Tax  on  transfers  of  stock.     (§§  315-324.  Added  by  L.  1905, 

chap.  241.) 

ARTICLE  I. 

TAXABLE   PROPERTY  AND  PLACE  OF  TAXATION. 

Section     1.  Short  title. 

2.  Definitions. 

3.  Property  liable  to  taxation. 

4.  Exemption  from  taxation. 

5.  Taxation  of  lands  sold  or  leased  by  the  state. 

6.  No   deduction   allowed   for   indebtedness   fraudulently   con- 

tracted. 

7.  When  property  of  nonresidents  is  taxable. 

8.  Place  of  taxation  of  property  of  residents. 

9.  Place  of  taxation  of  real  property. 

10.  Taxation  of  real  property  divided  by  line  of  tax  district. 

11.  Place  of  taxation  of  property  of  corporations. 

12.  Taxation  of  corporate  stock. 

13.  Stockholders  of  bank  taxable  on  shares. 

14.  Place  of  taxation  of  individual  bank  capital. 


4  THE  TAX  LAW. 

Section  1.  Short  title. —  This  chapter  shall  he  known  as 
the  tax  law. 

§  2.  Definitions. —  1.  "  Tax  district."  as  used  in  this  chap- 
ter, means  a  political  subdivision  of  the  state  having  a  board 
of  assessors  authorized  to  assess  property  therein  for  state 
and  county  taxes.  • 

2.  "  County  treasurer "  includes  any  officer  performing 
the  duties  devolving  upon  such  office  under  whatever  name. 

3.  The  terms  "  land,"  "  real  estate,"  and  "  real  property," 
as  used  in  this  chapter,  include  the  land  itself  above  and 
under  water,  all  buildings  and  other  articles  and  structures, 
substructures  and  superstructures,  erected  upon,  under  or 
above,  or  affixed  to  the  same;  all  wharves  and  piers,  includ- 
ing the  value  of  the  right  to  collect  wharfage,  cranage  or 
dockage  thereon ;  all  bridges,  all  telegraph  lines,  wires,  poles 
and  appurtenances ;  all  supports  and  inclosures  for  electrical 
conductors  and  other  appurtenances  upon,  above  and  under 
ground;    all   surface,   under  ground   or   elevated,  railroads, 
including  the  value  of  all  franchises,  rights  or  permission 
to  construct,  maintain  or  operate  the  same  in,  under,  above, 
on  or  through,  streets,  highways,  or  public  places;  all  rail- 
road  structures,    substructures   and   superstructures,   tracks 
and  the  iron  thereon ;  branches,  switches  and  other  fixtures 
permitted  or  authorized  to  be  made,  laid  or  placed  in,  upon, 
above  or  under  any  public  or  private  road,  street  or  ground ; 
all  mains,  pipes  and  tanks  laid  or  placed  in,  upon,  above  or 
under  any  public  or  private  street  or  place  for  conducting 
steam,  heat,  water,  oil,  electricity  or  any  property,  substance 
or  product  capable  of  transportation  or  conveyance  therein 
or  that  is  protected  thereby,  including  the  value  of  all  fran- 
chises, rights,  authority  or  permission  to  construct,  maintain 
or  operate,  in,  under,  above,  upon,  or  through,  any  streets, 
highways,  or  public  places,  any  mains,  pipes,   tanks,  con- 
duits,  or  wires,  with  their   appurtenances,   for  conducting 
water,  steam,  heat,  light,  power,  gas,  oil,  or  other  substance, 
or  electricity  for  telegraphic,  telephonic  or  other  purposes; 
all  trees  and  underwood  growing  upon  land,  and  all  mines, 
minerals,  quarries  and  fossils  in  and  under  the  same,  ex- 
cept mines  belonging  to  the  state.     A  franchise,  right,  au- 
thority or  permission  specified  in  this  subdivision  shall  for 


THE  TAX  LAW.  5 

the  purpose  of  taxation  be  known  as  a  "  special  franchise." 
A  special  franchise  shall  be  deemed  to  include  the  value  of 
the  tangible  property  of  a  person,  copartnership,  association 
or  corporation  situated  in,  upon,  under  or  above  any  street, 
highway,  public  place  or  public  waters  in  connection  with 
the  special  franchise.  The  tangible  property  so  included 
shall  be  taxed  as  a  part  of  the  special  franchise.  No  prop- 
erty of  a  municipal  corporation  shall  be  subject  to  a  special 
franchise  tax.  (Thus  amended  by  L.  1899,  chap.  712,  tak- 
ing effect  October  1,  1899.) 

This  subdivision  was  amended  by  what  ia  known  as  the  "  Franchise 
Tax  Law."  Sections  42,  43,  44.  45,  46  and  47  were  added  to  Article  II  of 
the  Tax  Law,  and  sections  21,  31  and  37  were  amended  by  the  same  law. 

4.  The  term  special  franchise  shall  not  be  deemed  to  in- 
clude the  crossing  of  a  street,  highway  or  public  place  where 
such  crossing  is  not  at  the  intersection  of  another  street  or 
highway,  unless  such  crossing  shall  be  at  other  than  right 
angles  for  a  distance  of  not  less  than  two  hundred  and  fifty 
feet,    in  which  case  the  whole  of   such   crossing  shall   be 
deemed   a   special    franchise.      This   subdivision   shall  not 
apply  to  any  elevated  railroad.       (Inserted    by    L.   1901, 
chap.  490,  taking  effect  April  23,  1901.) 

5.  The  terms  "  personal  estate ",    and   "  personal    prop- 
erty,"  as  used    in    this  chapter,   include  chattels,   money, 
things  in  action,  debts  due  from  solvent  debtors,  whether 
on  account,   contract,  note,   bond   or  mortgage;    debts   and 
obligations  for  the  payment  of  money  due  or  owing  to  per- 
sons residing  within  this  state,  however  secured  or  wher- 
ever such  securities  shall  be  held ;  debts  due  by  inhabitants 
of  this  state  to  persons  not  residing  within  the  United  States 
for  the  purchase  of  any  real  estate ;  public  stocks,  stocks  in 
moneyed  corporations,   and  such  portion  of  the  capital  of 
incorporated  companies,  liable  to  taxation  on  their  capital, 
as  shall  not  be  invested  in  real  estate.      (Subdivision  re- 
numbered by  L.  1901,  chap.  490,  taking  effect  April  23, 
1901.) 

§  3.  Property  liable  to  taxation. —  All  real  property  within 
this  state,  and  all  personal  property  situated  or  owned 
within  this  state,  is  taxable  unless  exempt  from  taxation 
bv  law. 


6  THE  TAX  LAW. 

§  4.  Exemption  from  taxation —  The    following    property 
shall  be  exempt  from  taxation : 

1.  Property  of  the  United  States. 

2.  Property  of  this  state  other  than,  its.  wild  or  forest 
lands  in  the  forest  preserve. 

3.  Property  of  a  municipal  corporation  of  the  state  held 
for  a  public  use,  except  the  portion  of  such  property  not 
within  the  corporation. 

4.  The  lands  in  any  Indian  reservation  owned  by  the 
Indian  nation,  tribe  or  band  occupying  them. 

5.  All  property  exempt  by  law  from  execution,  other  than 
an  exempt  homestead.     But  real  property  purchased  with 
the  proceeds  of  a  pension  granted  by  the  United  States  for 
military  or  naval  services,  and  owned  and  occupied  by  the 
pensioner,  or  by  his  wife  or  widow,  is  subject  to  taxation  as 
herein  provided.     Such  property  shall  be   assessed  in  the 
same  manner  as  other  real  property  in  the  tax  districts.     At 
the  meeting  of  the  assessors  to  hear  the  complaints  concern- 
ing assessments,   a  verified   application  for   the  exemption 
of  such  real  property  from  taxation  may  be  presented  to 
them  by  or  on  behalf  of  the  owner  thereof,  which  applica- 
tion must  show  the  facts  on  which  the  exemption  is  claimed, 
including  the  amount  of  pension  money  used  in  or  toward 
the  purchase  of  such  property.     If  the  assessors  are  satisfied 
that  the  applicant  is  entitled  to  the  exemption,  and  that  the 
amount  of  pension  money  used   in  the   purchase  of  such 
property  equals  or  exceeds  the  assessed  valuation  thereof, 
they  shall  enter  the  word  "  exempt "  upon  the  assessment- 
roll    opposite    the    description    of    such    property.     If    the 
amount  of  such  pension  money  used  in  the  purchase  of  the 
property  is  less  than  the  assessed  valuation,  they  shall  enter 
upon  the  assessment-roll  the  words  "  exempt  to  the  extent 

of    dollars "    (naming  the  amount)    and  thereupon 

such  real  property,  to  the  extent  of  the  exemption  entered 
by  the  assessors,  shall  be  exempt  from  state,  county  and  gen- 
eral municipal  taxation,  but  shall  be  taxable  for  local  school 
purposes,    and    for    the   construction    and    maintenance    of 
streets  and  highways.     If  no  application  for  exemption  be 
granted,  the  property  shall  be  subject  to  taxation  for  all  pur- 
poses.    The  entries  above  required  shall  be  made  and  con- 


THE  TAX  LAW.  7 

tinned  in  each  assessment  of  the  property  90  long  as  it  is 
exempt  from  taxation  for  any  purpose.  The  provisions 
herein,  relating  to  the  assessment  and  exemption  of  prop- 
erty purchased  with  a  pension,  apply  and  shall  be  enforced 
in  each  municipal  corporation  authorized  to  levy  taxes. 
(Thus  amended  by  L.  1897,  chap.  347.) 

6.  Bonds  of  this  state  to  be  hereafter  issued  by  the  comp- 
troller to  carry  out  the  provisions  of  chapter  seventy-nine  of 
the  laws  of  eighteen  hundred  and  ninety-five,  and  bonds  of 
a  municipal  corporation  heretofore  issued  for  the  purpose  of 
paying  up  or  retiring  the  bonded  indebtedness  of  such  cor- 
poration.    (Thus  amended  by  L.  1897,  chap.  80.) 

7.  The  real  property  of  a  corporation  or  association  or- 
ganized exclusively  for  the  moral  or  mental  improvement 
of  men  or  women,  or  for  religious,  bible,  tract,  charitable, 
benevolent,  missionary,  hospital,  infirmary,  educational,  sci- 
entific,  literary,    library,    patriotic,    historical   or   cemetery 
purposes,  or  for  the  enforcement  of  laws  relating  to  children 
or  animals,  or  for  two  or  more  such  purposes,  and  used  ex- 
clusively for  carrying  out  thereupon  one  or  more  of  such 
purposes ;  and  the  personal  property  of  any  such  corporation 
shall  be  exempt  from  taxation.     But  no  such  corporation  or 
association  shall  be  entitled  to  any  such  exemption  if  any 
officer,  member  or  employe  thereof  shall  receive  or  may  be 
lawfully  entitled  to  receive  any  pecuniary  profit  from  the 
operations  thereof  except  reasonable  compensation  for  ser- 
vices in  effecting  one  or  more  of  such  purposes,  or  as  proper 
beneficiaries  of  its  strictly  charitable  purposes ;  or  if  the  or- 
ganization thereof,  for  any  such  avowed  purposes,  be  a  guise 
or  pretense  for  directly  or  indirectly  making  any  other  pe- 
cuniary profit  for  such  corporation  or  association,   or  for 
any  of  its  members  or  employes,  or  if  it  be  not  in  good  faith 
organized  or  conducted  exclusively  for  one  or  more  of  such 
purposes.     The  real  property  of  any  such  corporation  or  as- 
sociation entitled  to  such  exemption  held  by  it  exclusively 
for  one  or  more  of  such  purposes  and  from  which  no  rents, 
profits  or  income  are  derived,  shall  be  so  exempt,  though 
not  in  actual  use  therefor  by  reason  of  the  absence  of  suit- 
able buildings  or  improvements  thereon,  if  the  construction 
of  such  buildings  or  improvements  is  in  progress,  or  ie  in 


8  THE  TAX  LAW. 

good  faith  contemplated  by  such  corporation  or  association;  or 
if  such  real  property  is  held  by  such  corporation  or  association 
upon  condition  that  the  title  thereto  shall  revert  in  case  any 
building  not  intended  and  suitable  for  one  or  more  of  such  pur- 
poses shall  be  erected  upon  said  premises  or  some  part  thereof.. 
The  real  property  of  any  such  corporation  not  so  used  exclusively 
for  carrying  out  thereupon  one  or  more  of  such  purposes,  but 
leased  or  otherwise  used  for  other  purposes,  shall  not  be  exempt, 
but  if  a  portion  only  of  any  lot  or  building  of  any  such  corpora- 
tion or  association  is  used  exclusively  for  carrying  out  thereupon 
one  or  more  such  purposes  of  any  such  corporation  or  associa- 
tion, then  such  lot  or  building  shall  be  so  exempt  only  to  the 
extent  of  the  value  of  the  portion  so  used,  and  the  remaining  or 
other  portion  to  the  extent  of  the  value  of  such  remaining  or 
other  portion  shall  be  subject  to  taxation;  provided,  however, 
that  a  lot  or  building  owned,  and  actually  used  for  hospital  pur- 
poses, by  a  free  public  hospital,  depending  for  maintenance  and 
support  upon  voluntary  charity  shall  not  be  taxed  as  to  a  por- 
tion thereof  leased  or  otherwise  used  for  the  purposes  of  income, 
when  such  income  is  necessary  for,  and  is  actually  applied 
to,  the  maintenance  and  support  of  such  hospital,  and  further 
provided  that  the  real  property  of  any  fraternal  corporation, 
association  or  body  created  to  build  and  maintain  a  building  or 
buildings  for  its  meeting  or  meetings  of  the  general  assembly  of 
its  members,  or  subordinate  bodies  of  such  fraternity  and  for 
the  accommodation  of  other  fraternal  bodies  or  associations,  the 
entire  net  income  of  which  real  property  is  exclusively  applied 
or  to  be  used  to  build,  furnish  and  maintain  an  asylum,  or 
asylums,  a  home  or  homes,  a  school  or  schools  for  the  free 
education  or  relief  of  the  members  of  such  fraternity  or  for  the 
relief,  support  and  care  of  worthy  and  indigent  members  of  the 
fraternity,  their  wives,  widows  or  orphans,  shall  be  exempt  from 
taxation.  Property  held  by  any  officer  of  a  religious  denomina- 
tion shall  be  entitled  to  the  same  exemptions,  subject  to  the 
same  conditions  and  exceptions,  as  property  held  by  a  religious 
corporation.  (Thus  amended  &?/  L.  1897,  chap.  371,  L.  1903,, 
chap.  204,  and  L.  1906,  chap.  336,  taking  effect  April  27,  1906.) 

8.  Real  property  of  an  incorporated  association  of  present  or 
former   volunteer  firemen   actually   and   exclusively   used   and 
occupied  by  such  corporation  and  not  exceeding  in  value  fifteen 
thousand  dollars. 

9.  All  dwelling-houses  and  lots  of  religious  corporations  while 
actually  used  by  the  officiating  clergymen  thereof,  but  the  total 
amount  of  such  exemption  to  any  one  religious  corporation  shall 
not  exceed  two  thousand  dollars.     Such  exemption  shall  be  in 
addition  to  that  provided  by  subdivision  seven  of  this  section. 

10.  The  real  property  of  an  agricultural  society  permanently 
used  by  it  for  exhibition  grounds. 


THE  TAX  LAW.  9 

11.  The  real  property  of  a  minister  of  the  gospel  or  priest 
who  is  regularly  engaged  in  performing  his  duties  as  such,  or 
permanently  disabled,  by  impaired  health  from  the  performance 
of  such  duties,  or  over  seventy-five  years  of  age,  and  the  per- 
sonal property  of  such  minister  or  priest,  but  the  total  amount 
of  such  exemption  on  account  of  both  real  and  personal  property 
shall  not  exceed  fifteen  hundred  dollars. 

12.  All  vessels  registered  at  any  port  in  this  state  and  owned 
by  an  American  citizen,  or  association,  or  by  any  corporation, 
incorporated  under  the  laws  of  the  state  of  Xew  York,  engaged 
in  ocean  commerce  between  any  port  in  the  United  States  and. 
any  foreign  port,  are  exempted  from  all  taxation  in  this  state, 
for  state  and  local  purposes;  and  all  such  corporations,  all  of 
whose  vessels  are  employed  between  foreign  ports  and  ports  in 
the  United  States,  are  exempted  from  all  taxation  in  this  state, 
for  state  and  local  purposes,  upon  their  capital  stock,  franchises 
and  earnings,  until  and  including  December  thirty-first,  nine- 
teen hundred  and  twenty-two. 

13.  A  bond,  mortgage,  note,  contract,  account  or  other  de- 
mand, belonging  to  any  person  not  a  resident  of  this  state,  sent 
to   or   deposited  in  this  state  for   collection;   the  products   of 
another  state,  owned  by  a  nonresident  of  this  state  and  con- 
signed to  his  agent  in  this  state  for  sale  on  commission  for  the 
benefit  of  the  owner;  moneys  of  a  nonresident  in  this  state, 
under  the  control  or  in  the  possession  of  his  agent  in  this  state, 
when  transmitted  to  such  agent  for  the  purpose  of  investment  or 
otherwise. 

14.  The  deposits  in  any  bank  for  savings  which  are  due 
depositors,  the  accumulations  in  any  domestic  life  insurance 
corporation,  held  for  the  exclusive  benefit  of  the  insured, 
other  than  real  estate  and  stocks,  now  liable  for  taxation; 
the    accumulations    of    any   incorporated   co-operative   loan 
association  upon  the  shares  of  such  association  held  by  any 
person;  and  personal  property  of  any  corporation,  person, 
company  or  association  transacting  the  business  of  fire,  cas- 
ualty or  surety  insurance  in  this  state  equal  in  value  to  the 
unearned  premiums  required  by  the  laws  of  this  state,  or  the 
regulations  of  its  insurance  department,  to  bo  charged  as  a 
liability.      (Thus  amended  by  L.  1901,  chap.  618,  in  effect 
April  29,  1901.) 

15.  Moneys  collected  in  the  course  of  the  business  of  any 
corporation,  association  or  society  doing  a  life  or  casualty 
insurance  business  or  both,  upon  the  co-operative  or  assess- 
ment plan,  and  which  are  to  be  used  for  the  payment  of  as- 


10  THE  TAX  LAV. 

sessmenta,    or   for   death   losses    or   for   benefits    to    disabled 
members. 

16.  The  owner  or  holder  of  stock  in  an  incorporated  company 
liable  to  taxation  on  its  capital,  shall  not  be  taxed  as  an  indi- 
vidual for  such  stock. 

17.  The  personal  property  in  excess  of  one  hundred  thousand 
dollars  of  a  mutual  life  insurance  corporation  incorporated  in 
this  state  before  April  tenth,  eighteen  hundred  and  forty-nine. 

18.  Property   real,   from   which  no   income   is  derived,   and   personal 
property,  situated  within  any  city  of  the  first  class  and  belonging  to 
the  medical   society  of  any  county,  which  county   is   either   wholly  or 
partly  within  such  city  and  which  society  was  heretofore  incorporated 
under  the  provisions  of  chapter  ninety-four,  laws  of  eighteen  hundred 
and  thirteen,  entitled  "An  act  to  incorporate  medical  societies  for  the 
purpose  of  regulating  the  practice  of  physic"  and  surgery  in  this  state," 
provided  that  such  property  is  used  for  the  purposes  of  such  a  society 
and  not  otherwise,  and  provided  that  such  exemption  of  property  for 
any  society  in  the  counties  of  Kings  or  New  York,  shall  not  exceed  one 
hundred  and  fifty  thousand  dollars,  and  in  any  other  county  affected 
hereby,  shall  not  exceed  fifty   thousand   dollars.      (Added   by  L.    1903, 
chap.  199.) 

19.  Property  real  from  which  no  rent  is  derived  and  personal  prop- 
erty, situated  within  any  city  of  the  first  class  and  belonging  to  any 
incorporated    pharmaceutical    society    of    any   county    which    is    either 
wholly  or  partly  within   such  city,   which   society  has  heretofore  been 
or  may  hereafter  be  authorized  and  empowered  by  act  of  the  legislature 
to   establish  and  which  has  established   or   may  hereafter  establish,   a 
college  of  pharmacy  in 'such  city;  provided  that  such  property  is  used 
for  the  purposes  of  such  college  and  not  otherwise,  and  provided  also 
that  the  exemption   of  such  property  for  any   society  in   the   counties 
of  Kings  and  New  York  shall  not  exceed  one  hundred 'thousand  dollars 
and  in  any  other  county  affected  hereby,  shall  not  exceed  fifty  thousand 
dollars.     (Added  by  L.  1905,  chap.  446.) 

§  5.  Taxation  of  lands  sold  or  leased  by  the  state. —  All  lands  which 
have  been  sold  by  the  state,  although  not  conveyed,  shall  be  assessed 
in  the  same  manner  as  if  such  purchaser  were  the  actual  owner.  Where 
land  is  leased  by  the  state  such  leasehold  interest,  except  in  cases  where 
by  the  terms  of  the  lease  the  state  is  to  pay  the  taxes  imposed  upon  the 
property  leased,  shall  be  assessed  to  the  lessee  or  occupant  in  the  tax 
district  where  the  land  is  situated.  (Thus  amended  by  L.  1897,  chap. 
443.) 

§  6.  No  deduction  allowed  for  indebtedness  fraudulently  contracted. — 
No  deduction  shall  be  allowed  in  the  assessment  of  personal  property 
by  reason  of  the  indebtedness  of  the  owner  contracted  or  incurred  in  the 
purchase  of  nontaxable  property  or  securities  owned  by  him  or  held  for 
his  benefit,  nor  for  or  on  account  of  any  indirect  liability  as  surety, 
guarantor,  indorser  or  otherwise,  nor  for  or  on  account  of  any  debt  or 
liability  contracted  or  incurred  for  the  purpose  of  evading  taxation. 

§  7.  When  property  of  nonresidents  is  taxable. —  Subdivision  1.  Non- 
residents of  the  state  doing  business  in  the  state,  either  as  principals 
or  partners,  shall  be  taxed  on  the  capital  invested  in  such  business,  as 
personal  property,  at  the  place  where  such  business  is  carried  on,  to  the 
same  extent  as  if  they  were  residents  of  the  state. 

2.  The  personal  property  of  nonresidents  of  the  state  having  an  actual 
situs  in  the  state,  and  not  forming  a  part  of  capital  invested  in  business 
in  the  state,  shall  be  assessed  in  the  name  of  the  owner  thereof  for  the 
purpose  of  identification  and  taxed  in  the  tax  district  where  such  prop- 


THE  TAX  LAW.  11 

erty  is  situated,  unless  exempt  by  law.  This  subdivision  shall  not  apply 
to  money,  or  negotiable  collateral  securities,  deposited  by,  or  debts 
owing  to,  such  nonresidents  nor  shall  it  be  construed  as  in  any  manner 
modifying  or  changing  the  law  imposing  a  tax  on  real  estate  mortgage 
securities.  (Amended  by  L.  1906,  chap.  248,  taking  effect  April  16, 
1906.) 

§  8.  Place  of  taxation  of  property  of  residents. —  Every  person  shall 
be  taxed  in  the  tax  district  where  he  resides  when  the  assessment 
for  taxation  is  made,  for  all  personal  property  owned  by  him,  or  under 
his  control  as  agent,  trustee,  guardian,  executor  or  administrator. 
Where  taxable  personal  property  is  in  the  possession  or  under  the  con- 
trol of  two  or  more  agents,  trustees,  guardians,  executors  or  adminis- 
trators residing  in  different  tax  districts,  each  shall  be  taxed  for  an 
equal  portion  of  the  value  of  such  property  so  held  by  them.  Rents 
reserved  in  any  lease  in  fee  or  for  one  or  more  lives  or  for  a  term 
more  than  twenty-one  years  and  chargeable  upon  real  property  within 
the  state,  shall  be  taxable  to  the  person  entitled  to  receive  the  same, 
as  personal  property  in  the  tax  district  where  such  real  property  is 
situated,  and  for  the  purpose  of  the  taxation  thereof  such  person  is  to 
be  deemed  a  resident  of  such  tax  district.  When  a  person  shall  have 
acquired  a  residence  in  a  tax  district,  and  shall  have  been  taxed  therein, 
such  residence  shall  be  presumed  to  continue  for  the  purpose  of  taxation 
until  he  shall  have  acquired  another  residence  in  this  state  or  shall 
have  removed  from  this  state.  The  residence  of  a  person  on  July  first 
shall  be  deemed  his  residence  for  the  purpose  of  assessment  and  taxation 
during  that  year.  If  he  shall  have  actually  and  in  good  faith  changed 
Ids  residence  after  July  first,  and  before  August  first  in  any  year,  from 
one  tax  district  to  another,  and  shall  make  proof  to  the  assessors  at 
or  before  their  last  meeting  for  the  correction  of  the  assessment-roll  of 
such  change  of  residence  and  that  he  is  assessed  in  the  tax  district  to 
which  he  has  removed,  his  name  and  the  assessment  of  his  personal 
property  shall  be  stricken  from  the  assessment-roll  of  the  tax  district 
whore  he  resided  on  July  first.  In  case  of  any  controversy  as  to  the 
proper  place  of  taxation  within  the  state  of  any  person,  his  residence 
for  purposes  of  taxation  may  be  determined  by  the  state  board  of  tax 
commissioners,  subject  to  review  by  the  court. 

§  9.  Place  of  taxation  of  real  property. —  When  real  prop- 
erty is  owned  by  a  resident  of  a  tax  district  in  which  it  is 
situated,  it  shall  be  assessed  to  him.  When  real  property 
is  owned  by  a  resident  outside  the  tax  district  where  it  is 
situated,  and  is  occupied,  and  the  occupant  is  a  resident  of 
the  tax  district,  it  shall  be  assessed  to  either  the  owner  or 


12  THE  TAX  LAW. 

occupant.  If  the  occupant  resides  out  of  the  tax  district 
or  if  the  land  is  unoccupied,  it  shall  be  assessed  as  non-resi- 
dent, as  hereinafter  provided  by  article  two.  In  all  cases  the 
assessment  shall  be  deemed  as  against  the  real  property  itself, 
and  the  property  itself  shall  be  holden  and  liable  to  sale  for 
any  tax  levied  upon  it.  (Thus  amended  by  L.  1902,  chap. 
171,  in  effect  April  4,  1902.) 

§  10.  Taxation  of  real  property  divided  by  line  of  tax  dis- 
trict.—  If  a  farm  or  lot  is  divided  by  a  line  between  two  or 
more  tax  districts  it  shall  be  assessed  in  the  tax  district  in 
which  the  dwelling  house  or  other  principal  buildings  are 
located,  in  the  manner  provided  by  section  nine  of  this  chap- 
ter, the  same  as  though  such  farm  or  lot  was  wholly  in  such 
tax  district,  except  that  if  the  land  is  unoccupied  or  has  not 
buildings  thereupon,  the  portion  of  such  farm,  lot  or  tract 
of  land  lying  in  each  district  shall  be  separately  assessed 
therein.  If  such  land  is  situated  in  two  or  more  -  counties 
and  is  wild  and  uncultivated  and  not  occupied  and  used  for 
agricultural  purposes,  the  portions  of  such  land  lying  in 
each  county  shall  be  separately  assessed  therein.  If  the 
boundary  line  of  a  tax  district  passes  through  a  building, 
any  portion  of  which  is  used  as  a  dwelling,  the  owner  of 
such  building,  if  occupying  the  same  or  residing  in  either 
tax  district,  and  otherwise,  the  person  occupying  such  build- 
ing as  a  dwelling-house,  may  elect  in  which  district  such 
building  and  the  adjacent  land,  owned,  occupied  and  con- 
nected therewith  shall  be  assessed,  by  serving  a  written 
notice  of  such  election  on  the  assessors  of  each  tax  district 
during  the  month  of  May;  but  if  such  election  is  not  made, 
the  property  shall  be  assessed  in  the  tax  districts  in  which 
it  is  located.  (Thus  amended  by  L.  1898,  chap.  537,  and 
L.  1902,  chap.  200,  and  L.  1903,  chap.  305.) 

§  11.  Place  of  taxation  of  property  of  corporations The 

real  estate  of  all  incorporated  companies  liable  to  taxation, 
shall  be  assessed  in  the  tax  district  in  which  the  same  shall 
lie,  in  the  same  manner  as  the  real  estate  of  individuals.  All 
the  personal  estate  of  every  incorporated  company  liable  to 
taxation  on  its  capital  shall  be  assessed  in  the  tax  district 


THE  TAX  LAW.  13 

where  the  principal  office  or  place  for  transacting  the  finan- 
cial concerns  of  the  company  shall  be,  or  if  such  company 
have  no  principal  office,  or  place  for  transacting  its  finan- 
cial concerns,  then  in  the  tax  district  where  the  operations 
of  such  company  shall  be  carried  on.  In  the  case  of  toll- 
bridges,  the  company  owning  such  bridge  shall  be  assessed 
in  the  tax  district  in  which  the  tolls  are  collected ;  and  where 
the  tolls  of  any  bridge,  turnpike,  or  canal  company  are  col-* 
lected  in  several  tax  districts,  the  company  shall  be  assessed 
in  the  tax  district  in  which  the  treasurer  or  other  officer 
authorized  to  pay  the  last  preceding  dividend  resides. 

§  12.  Taxation  of  corporate  stock. —  The  capital  stock  of 
every  company  liable  to  taxation,  except  such  part  of  it  as 
shall  have  been  excepted  in  the  assessment-roll  or  shall  be 
exempt  by  law,  together  with  its  surplus  profits  or  reserve 
funds  exceeding  ten  percentum  of  its  capital,  after  deduct- 
ing the  assessed  value  of  its  real  estate,  and  all  shares  of 
stock  in  other  corporations  actually  owned  by  such  company 
which  are  taxable  upon  their  capital  stock  under  the  laws 
of  this  state,  shall  be  assessed  at  its  actual  value. 

§  13.  Stockholders  o-f  bank  taxable  on  shares. —  The  stock- 
holders of  every  bank  or  banking  association  organized  under 
the  authority  of  this  state,  or  of  the  United  States,  shall  be 
assessed  and  taxed  on  the  value  of  their  shares  of  stock 
therein ;  said  shares  shall  be  included  in  the  valuation  of 
the  personal  property  of  such  stockholders  in  the  assessment 
of  taxes  in  the  tax  district  where  such  bank  or  banking  as- 
sociation is  located,  and  not  elsewhere,  whether  the  said 
stockholders  reside  in  said  tax  district  or  not. 

§  14.  Place  of  taxation  of  individual  bank  capital.—  Every 
individual  banker  shall  be  taxable  upon  the  amount  of  capi- 
tal invested  in  his  banking  business  in  the  tax  district  where 
the  place  of  such  business  is  located  and  shall,  for  that  pur- 
pose, be  deemed  a  resident  of  such  tax  district. 


13a  THE  TAX  LAW. 

§  15.  Report  of  exempt  property. — It  shall  be  the  duty 
of  the  board  of  assessors  of  the  several  towns  of  this  state, 
and  the  boards  or  officials  charged  with  the  duty  of  assessing 
property  for  the  purposes  of  taxation  in  the  several  cities  of 
the  state,  to  furnish  to  the  clerks  of  the  boards  of  supervisors 
of  their  respective  counties,  or  in  the  case  of  the  city  of  New 
York,  to  the  city  clerk  of  that  city,  on  or  before  the  first  day 
of  July  in  each  year,  a  full  and  complete  list  and  statement 
of  all  property  situated  within  their  respective  districts 
exempt  from  taxation  under  the  laws  of  his  state.  Such 
list  and  statement  shall  be  made  on  blanks  furnished  by  the 
state  board  of  tax  commissioners,  and  in  such  form  and  to 
contain  and  set  forth  all  the  information  relative  to  such 
property  and  the  situation  and  value  thereof,  as  may  be 
required  by  the  state  board  of  tax  commissioners,  and  to  be 
verified  in  the  same  manner  as  assessments  of  property  for 
the  purposes  of  taxation  and  in  the  city  of  New  York  by  the 
chief  deputy  of  the  department  of  taxes  and  assessments. 
The  state  board  of  tax  commissioners  shall  prepare  and  trans- 
mit to  the  clerk  of  the  board  of  supervisors  in  each  county 
and  to  the  city  clerk  of  the  city  of  New  York,  a  sufficient 
number  of  such  blanks,  on  or  before  the  first  day  of  May 
in  each  year,  and  the  clerks  of  the  boards  of  supervisors  and 
the  city  clerk  of  the  city  of  New  York  shall  forthwith,  upon 
the  receipt  thereof,  distribute  the  same  among  the  boards 
of  assessors  for  use  in  preparing  the  statement  herein  re- 
quired. And  it  shall  be  the  duty  of  the  clerk  of  the  board 
of  supervisors  of  each  county  and  of  the  city  clerk  of  the  city 
of  New  York,  to  transmit  such  completed  lists  or  statements 
to  the  state  board  of  tax  commissioners,  on  or  before  the  first 
day  of  August  in  each  year,  and  the  state  board  of  tax  com- 
missioners shall  tabulate  such  statements,  and  on  or  before 
the  first  day  of  February  in  each  year,  cause  to  be  published 
in  their  annual  report  to  the  legislature,  a  complete  tabulated 
statement,  based  upon  the  statement  so  transmitted  to  the 
state  board  of  tax  commissioners,  of  all  real  estate  in  the 
several  counties  of  the  state,  which  is  exempt  from  taxation. 
Immediately  upon  the  receipt  of  the  completed  reports  by 


THE  TAX  LAW.  13b 

the  various  clerks  of  the  board  of  supervisors,  and  the  city 
clerk  of  the  city  of  New  York,  those  officials  shall  prepare  a 
tabulated  statement  of  the  returns  received  and  shall  post  a 
copy  thereof  in  a  conspicuous  place,  and  in  all  cities  of  the 
state  cause  a  copy  thereof  to  be  published  in  the  official  paper 
or  papers  of  said  city  at  least  once  in  each  week  for  three 
successive  weeks.  The  expense  of  such  publication  shall 
be  a  city  charge  and  shall  be  audited  and  paid  in  the  same 
manner  as  charges  for  other  city  notices  are  audited  and 
paid.  (Added  by  L.  1904,  chap.  438.) 

L.  1904,  ch.  438. 

§  2.  Chapter  six  hundred  and  eighty-nine  of  the  laws  of 
nineteen  hundred  is  hereby  repealed. 


14  THE  TAX  LAW. 


ARTICLE  II. 

MODE   OF  ASSESSMENT. 

Section  20.  Ascertaining  facts  for  assessment. 

21.  Preparation  of  assessment-roll. 

22.  Assessment  of  state  lands  in  forest  preserve. 

23.  Banks  to  make  report. 

24.  Bank  shares,  how  assessed. 

25.  Individual  banker,  how  assessed. 

26.  Notice  of  assessment  to  bank  or  banking  association. 

27.  Reports  of  corporations. 

28.  Penalty  for  omission  to  make  statement. 

28a.  County  clerks  to  furnish  data  respecting  corporations. 

29.  Assessment  of  real  property  of  nonresident. 

30.  Surveys  and  maps  of  nonresident  real  property. 

31.  Corporations,  how  assessed. 

32.  Assessment  of  agent,  trustee,  guardian  or  executor. 

33.  Assessment  of  omitted  property. 

34.  Debts  owing  to  nonresidents  of  United  States,  how  assessed. 

35.  Notice  of  completion  of  assessment-roll. 

36.  Hearing  of   complaints. 

37.  Correction  and  verification  of  tax-roll. 

38.  Filing  of  roll  and  notice  thereof. 

39.  Assessors  to  apportion  valuation  of  railroad,  telegraph,  tele- 

phone, or  pipe  line  companies  between  school  districts. 

40.  Neglect  or  omission  of  duty  by  assessors. 

41.  Abandonment  of  lot  divisions. 

42.  Assessment  of  special  franchises. 

43.  Report  to  state  board  of  tax  commissioners. 

44.  Hearing  on  special  franchise  assessment. 

45.  Certiorari  to  review  assessment. 

45a.  Id ;  Appearance  by  state  board  by  special  counsel ;  payment 
of  his  costs,  expenses  and  disbursements. 

46.  Deduction  from  special  franchise  tax  for  local  purposes. 

47.  Special  franchise  tax  not  to  affect  other  tax. 

§  20.  Ascertaining  facts  for  assessment. —  The  assessors  in 
each  tax  district  may,  by  mutual  agreement,  divide  it  into 
convenient  assessment  districts  not  exceeding  the  number 
of  such  assessors.  The  assessors  in  each  tax  district  shall 
annually,  between  May  first  and  July  first,  ascertain  by  dili- 
gent inquiry  all  the  property  and  the  names  of  all  the  per- 
sons taxable  therein,  except  that  in  towns  containing  an  in- 
corporated village  having  a  population  of  more  than  ten 
thousand  inhabitants  according  to  the  last  state  census  thei 
assessors  may  have  from  April  fifteenth  until  July  first  to 


THE  TAX  LAW.  15 

ascertain  the  taxable  property  and  names  of  persons  taxable  in 
such  town,  and  except  that  in  towns  containing  an  incorporated 
city  having  a  population  of  more  than  ten  thousand  inhabitants 
according  to  the  last  state  census  where  said  city  so  situated 
shall  have  its  own  separate  board  of  assessors,  the  town  as- 
sessors may  have  from  May  first  to  July  first  to  ascertain  the 
taxable  property  and  names  of  persons  taxable  in  such  towns. 
(Thus  amended  by  L.  1902,  chap.  324,  and  L.  1905,  chap.  61, 
in  effect  March  15,  1905.) 

§  21.  Preparation  of  assessment-roll. —  They  shall  prepare  an 
assessment-roll  containing  six  separate  columns,  and  shall,  ac- 
cording to  the  best  information  in  their  power,  set  down: 

1.  In  the  first  column  the  names  of  all  taxable  persons  in 
the  tax  district. 

2.  In  the  second  column  the  quantity  of  real  property  taxable 
to  each  person,  with  a  statement  thereof  in  such  form  as  the 
commissioners  of  taxes  shall  prescribe. 

3.  In  the  third  column  the  full  value  of  such  real  property. 

4.  In  the  fourth  column  the  full  value  of  all  the  taxable  per- 
sonal property  owned  by  each  person  respectively  after  deduct- 
ing the  just  debts  owing  by  him. 

5.  In  the  fifth  column  the  value  of  taxable  rents  reserved  and 
chargeable  upon  lands  within  the  tax  district,  estimated  at  a 
principal  sum,  the  interest  of  which,  at  a  legal  rate  per  annum, 
shall  produce  a  sum  equal  to  such  annual  rents,  and  if  payable 
in  any  other  thing  except  money,  the  value  of  the  rents  in 
money  to  be  ascertained  by  them  and  the  value  of  each  rent  as- 
sessed separately,  and  if  the  name  of  the  person  entitled  to  re- 
ceive the  rent  assessed  cannot  be  ascertained  by  the  assessors, 
it  shall  be  assessed  against  the  tenant  in  possession  of  the  real 
property  upon  which  the  rents  are  chargeable. 

6.  In  the  sixth  column  the  value  of  the  special  franchise  as 
fixed  by  the  state  board  of  tax  commissioners.      (Amended  by 
L.  1899,  chap.  712,  taking  effect  October  1,  1899.) 

7.  Such  assessment-roll  shall  contain  two  additional  columns, 
in  one  of  which  shall  be  inserted  the  amount  of  the  tax  levied 
against  each  person  named  therein,  and  in  the  other  the  date 
of  the  payment  of  such  tax.     (Inserted  by  L.  1901,  chap.  159, 
taking  effect  March  22,  1901.) 


16  THE  TAX  LAW. 

L.  1898,  Chap.  610,  An  Act  to  Legalize  Certain  Assessments. 

Section  1.  An  assessment  of  real  or  personal  property  heretofore 
made  shall  not  be  deemed  invalid  because  the  property  was  assessed  to 
the  "  estate  "  of  a  decedent,  instead  of  to  his  personal  representatives, 
devisees,  legatees,  heirs,  or  next  of  kin. 

§  2.  Nothing  in  this  act  contained  shall  affect  any  legal  action  now 
pending. 

§  3.  This  act  shall  take  effect  immediately. 

§  22.  Assessment  of  state  lands  in  forest  preserve — All 
wild  or  forest  lands  within  the  forest  preserve  shall  be  as- 
sessed and  taxed  at  a  like  valuation  and  rate  as  similar  lands 
of  individuals  within  the  counties  where  situated.  On  or 
before  August  first  in  every  year  the  assessors  of  the  town 
within  which  the  lands  so  belonging  to  the  state  are  situated 
shall  file  in  the  office  of  the  comptroller  and  of  the  board 
of  fisheries,  game  and  forest,  a  copy  of  the  assessment-roll 
of  the  town,  which,  in  addition  to  the  other  matter  now  re- 
quired by  law,  shall  state  and  specify  which  and  how  much, 
if  any,  of  the  lands  assessed  are  forest  lands,  and  "which  and 
how  much,  if  any,  are  lands  belonging  to  the  state;  such 
statements  and  specifications  to  be  verified  by  the  oaths  of 
a  majority  of  the  assessors.  The  comptroller  shall  there- 
upon, and  before  the  first  day  of  September  following,  and 
after  hearing  the  assessors  and  the  board  of  fisheries,  game 
and  forest,  if  they  or  any  of  them  so  desire,  correct  or  re- 
duce any  assessment  of  state  lands  which  may  be  in  his  judg- 
ment an  unfair  proportion  to  the  remaining  assessment  of 
land  within  the  town,  and  shall  in  other  respects  approve 
the  assessment  and  communicate  such  approval  to  the  as- 
sessors. No  such  assessment  of  state  lands  shall  be  valid 
for  any  purpose  until  the  amount  of  assessment  is  approved 
by  the  comptroller,  and  such  approval  attached  to  and  de- 
posited with  the  assessment-roll  of  the  town,  and  therewith 
delivered  by  the  assessors  of  the  town,  to  the  supervisor 
thereof  or  other  officer  authorized  to  receive  the  same  from 
the  assessors.  No  tax  for  the  erection  of  a  schoolhouse  or 
opening  of  a  road  shall  be  imposed  on  the  state  lands  unless 
such  erection  or  opening  shall  have  first  been  approved  in 
writing  by  the  board  of  fisheries,  game  and  forest. 


THE  TAX  LAW.  17 

§  23.  Banks  to  make  report. —  The  chief  fiscal  officer  of 
every  bank  or  banking  association  organized  under  the  au- 
thority of  this  state,  or  of  the  United  States,  shall,  on  or 
before  the  first  day  of  July,  in  each  year,  furnish  the  as- 
sessors of  the  tax  district  in  which  its  principal  office  is  lo- 
cated a  statement  under  oath  of  the  condition  of  such  bank 
or  banking  association  on  the  first  day  of  June  next  preced- 
ing, stating  the  amount  of  its  authorized  capital  stock,  the 
number  of  shares  and  the  par  value  of  the  shares-  thereof,  the 
amount  of  stock  paid  in,  the  amount  of  its  surplus  and  of  its 
undivided  profits,  if  any,  a  complete  list  of  the  names  and 
residences  of  its  stockholders  and  the  number  of  shares  held 
by  each.  In  case  of  neglect  or  refusal  on  the  part  of  any 
bank  or  banking  association  to  report  as  herein  prescribed, 
or  to  make  other  or  further  reports  as  may  be  required  such 
bank  or  banking  association  shall  forfeit  the  sum  of  one  hun- 
dred dollars  for  each  failure,  and  the  additional  sum  of  ten 
dollars  for  each  day  such  failure  continues,  and  an  action, 
therefor  shall  be  prosecuted  by  the  county  treasurer  of  the 
county  in  which  such  bank  or  banking  association  so  neg- 
lecting or  refusing  to  report  is  located,  and  in  the  city  of 
New  York  by  the  receiver  of  taxes  thereof.  There  shall,  in 
addition  to  such  report,  be  kept  in  the  office  of  every  such 
bank  or  banking  association  a  full  and  correct  list  of  the 
names  and  residences  of  all  stockholders  therein,  and  of  the 
number  of  shares  held  by  each,  and  such  lists  shall  be  sub- 
ject  to  the  inspection  of  the  assessors  at  all  times.  The  list 
of  stockholders  furnished  by  such  bank  or  banking  associa- 
tion shall  be  deemed  to  contain  the  names  of  the  owners  of 
such  shares  as  are  set  opposite  them,  respectively,  for  the 
purpose  of  assessment  and  taxation.  (Thus  amended,  by  L~ 
1901,  chap.  550,  in  effect  April  25,  1901.) 

§  24.  Bank  shares,  how  assessed. —  In  assessing  the  shares 
of  stock  of  banks  or  banking  associations  organized  under  the 
authority  of  this  state  or  the  United  States,  the  assessment 
and  taxation  shall  not  be  at  a  greater  rate  than  is  miade  or 
assessed  upon  other  monied  capital  in  Hie  hands  of  individual 
citizens  of  this  state.  The  value  of  each  share  of  stock  of  each 
bank  and  banking  association,  except  such  as  are  in  liquidation, 
shall  be  ascertained  and  fixed  by  adding  together  the  amount  of 
the  capital  stock,  surplus,  and  undivided  profits  of  such  bank  or 


18  THE  TAX  LAW. 

banking  association  and  by  dividing  the  result  by  the  number  ot 
outstanding  shares  of  such  bank  or  banking  association.  The 
value  of  each  share  of  stock  in  each  bank  or  banking  association 
in  liquidation  shall  be  ascertained  and  fixed  by  dividing  the 
actual  assets  of  such  bank  or  banking  association  by  the  number 
of  outstanding  shares  of  such  bank  or  banking  association. 
The  rate  of  tax  upon  the  shares  of  stock  of  banks  and  banking 
associations  shall  be  one  per  centum  upon  the  value  thereof, 
as  ascertained  and  fixed  in  the  manner  hereinbefore  pro- 
vided, and  the  owners  of  the  stock  of  banks  and  banking  as- 
sociations shall  be  entitled  to  no  deduction  from  the  taxable 
value  of  their  shares  because  of  the  personal  indebtedness 
of  such  owners,  or  for  any  other  reason  whatsoever.  Com- 
plaints in  relation  to  the  assessments  of  the  shares  of  stock 
of  banks  and  banking  associations  made  under  the  provisions 
of  this  act  shall  be  heard  and  determined  as  provided  in  ar- 
ticle two,  section  thirty-six,  of  the  tax  law.  The  said  tax 
shall  be  in  lieu  of  all  other  taxes  whatsoever  for  state,  county 
or  local  purposes  upon  the  said  shares  of  stock,  and  mort- 
gages, judgments  and  other  choses  in  action  and -personal 
property  held  or  owned  by  banks  or  banking  associations, 
the  value  of  which  enters  into  the  value  of  said  shares  of 
stock,  shall  also  be  exempt  from  all  other  state,  county  or 
local  taxation.  The  tax  herein  imposed  shall  be  levied  in 
the  following  manner :  The  board  of  supervisors  of  the  sev- 
eral counties  shall,  on  or  before  the  fifteenth  day  of  Decem- 
ber in  each  year,  ascertain  from  an  inspection  of  the  assess- 
ment-rolls in  their  respective  counties,  the  number  of  shares 
of  stock  of  banks  and  banking  associations  in  each  town,  city, 
village,  school  and  other  tax  district,  in  their  several  coun- 
ties, respectively,  in  which  such  shares  of  stock  are  taxable, 
the  names  of  the  banks  issuing  the  same,  respectively,  and 
the  assessed  value  of  such  shares,  as  ascertained  in  the  man- 
ner provided  in  this  act  and  entered  upon  the  said  assess- 
ment-rolls, and  shall  forthwith  mail  to  the  president  or 
cashier  of  each  of  said  banks  or  banking  associations  a  state- 
ment setting  forth  the  amount  of  its  capital  stock,  surplus 
and  undivided  profits,  the  number  of  outstanding  shares 
thereof,  the  value  of  each  share  of  stock  taxable  in  said 
county,  as  ascertained  in  the  manner  herein  provided,  and 
the  aggregate  amount  of  tax  to  be  collected  and  paid  by  such 
bank  and  banking  association,  under  the  provisions  of  this 
act.  A  certified  copy  of  each  of  said  statements  shall  be 
sent  to  the  county  treasurer.  It  shall  be  the  duty  of  every 


THE  TAX  LAW.  19 

bank  or  banking  association  to  collect  the  tax  due  upon  its 
shares  of  stock  from  the  several  owners  of  such  shares,  and  to 
pay  the  same  to  the  treasurer  of  the  county  wherein  said  bank 
or  banking  association  is  located,  and  in  the  city  of  New  York 
to  the  receiver  of  .taxes  thereof  on  or  before  the  thirty-first  day 
of  December  in  said  year ;  and  any  bank  or  banking  association 
failing  to  pay  the  said  tax  as  herein  provided  shall  be  liable  by 
way  of  penalty  for  the  gross  amount  of  the  taxes  due  from  all 
owners  of  the  shares  of  stock,  and  for  an  additional  amount  of 
one  hundred  dollars  for  every  day  of  delay  in  the  payment  of 
said  tax.  Every  bank  or  banking  association  so  paying  the 
taxes  due  upon  the  shares  of  its  stock  shall  have  a  lien  on  the 
shares  of  stock,  and  on  all  property  of  the  several  share  owners 
in  its  hands,  or  which  may  at  any  time  come  into  its  hands,  for 
reimbursement  of  the  taxes  so  paid  on  account  of  the  several 
shareholders,  with  legal  interest ;  and  such  lien  may  be  enforced 
in  any  appropriate  manner.  The  tax  hereby  imposed  shall  be 
distributed  in  the  following  manner :  The  board  of  supervisors 
of  the  several  counties  shall  ascertain  the  tax  rate  of  each  of  the 
several  town,  city,  village,  school  and  other  tax  districts  in  their 
counties,  respectively,  in  which  the  shares  of  stock  of  banks  and 
banking  associations  shall  be  taxable,  which  tax  rates  shall  in- 
clude the  proportion  of  state  and  county  taxes  levied  in  such 
districts,  respectively,  for  the  year  for  which  the  tax  is  imposed, 
and  the  proportion  of  the  tax  on  bank  stock  to  which  each  of 
said  districts  shall  be  respectively  entitled  shall  be  ascertained 
by  taking  such  proportion  of  the  tax  upon  the  shares  of  stock 
of  banks  and  banking  associations,  taxable  in  such  districts  re- 
spectively, under  the  provisions  of  this  act  as  the  tax  rate  of 
such  tax  district  shall  bear  to  the  aggregate  tax  rates  of  all  the 
tax  districts  in  which  said  shares  of  stock  shall  be  taxable.  The 
clerk  of  the  several  cities,  villages  and  school  districts  to  which 
any  portion  of  the  tax  on  shares  of  stock  of  banks  and  banking 
associations  is  to  be  distributed  under  this  act  shall,  in  writing 
and  under  oath  annually,  report  to  the  board  of  supervisors  of 
their  respective  counties,  during  the  first  week  of  the  annual 
session  of  such  board,  the  tax  rate  of  such  city,  village  and 
school  district  for  the  year  prior  to  the  meeting  of  each  such 
board.  The  said  board  of  supervisors  shall  issue  their  warrant  or 
order  to  the  county  treasurer  on  or  before  the  fifteenth  day  of  De- 
cember in  each  year,  setting  forth  the  number  of  shares  of  bank 
stock  taxable  in  each  town,  city,  village,  school  and  other  tax  dis- 
trict in  said  county,  in  which  said  shares  of  stock  shall  be  tax- 
able, the  tax  rate  of  each  of  said  tax  districts  for  said  year,  the 
proportion  of  the  tax  imposed  by  this  act  to  which  each 
of  said  tax  districts  is  entitled,  under  the  provisions  hereof, 


20  THH  TAX  LAW. 

and  commanding  him  to  collect  same,  and  to  pay  to  the 
proper  officer  in  each  of  such  districts  the  proportion  of  such 
tax  to  which  it  is  entitled  under  the  provisions  of  this  act. 
The  said  county  treasurer  shall  have  the  same  powers  to 
enforce  the  collection  and  payment  of  said  tax  as  are»  pos- 
sessed by  the  officers  now  charged  by  law  with  the  'collection 
of  taxes,  and  the  said  county  treasurer  shall  be  entitled  to  a 
commission  of  one  per  centum  for  collecting  and  paying  out 
said  monies,,  which  commission  shall  be  deducted  from  the 
gross  amount  of  said  tax  before  the  same  is  distributed.  In 
issuing  their  warrants  to  the  collectors  of  taxes,  the  board 
of  supervisors  shall  omit  therefrom  assessments  of  and  taxes 
upon  the  shares  of  stock  of  banks  and  banking  associations. 
All  assessments  of  the  shares  of  stock  of  banks  and  banking 
associations  made  on  or  after  January  first,  nineteen  hun- 
dred and  one,  and  prior  to  the  passage  of  this  act,  shall  be 
null  and  void,  and  new  assessments  thereof  shall  be  made 
agreeably  to  the  provisions  of  this  act.  Provided;  that  in 
the  city  of  New  York  the  statement  of  the  bank  assessment 
and  tax  herein  provided  for  shall  be  made  by  the  board  of 
tax  commissioners  of  said  city,  on  or  before  the  fifteenth  day 
of  December  in  each  year,  and  by  them  forthwith  mailed  to 
the  respective  banks  and  banking  associations  located  in  said 
city,  and  a  certified  copy  thereof  sent  to  the  receiver  of  taxes 
of  said  city.  The  tax  shall  be  paid  by  the  respective  banks 
in  said  city  to  the  said  receiver  of  taxes  on  or  before  the 
thirty-first  day  of  December  in  said  year,  and  said  tax  shall 
be  collected  by  the  said  receiver  of  taxes  and  shall  be  by  him 
paid  into  the  treasury  of  said  city  to  the  credit  of  the  general 
fund  thereof.  This  act  is  not  to  be  construed  as  an  exemp- 
tion of  the  real  estate  of  banks  or  banking  associations  from 
taxation.  (Thus  amended  by  L.  1901,  chap.  550,  L.  1902, 
chap.  126;  and  L.  1903,  chap.  267,  taking  effect  April  24, 
1903.) 

§25.  Individual  banker,  how  assessed. —  Every  individual 
banker  doing  business  under  the*  laws  of  this  state,  must 
report  before  the  fifteenth  day  6f  June  under  oath  to  the 
assessors  of  the  tax  district  in  which  any  of  the  capital  in- 
vested in  such  banking  business  is  taxable,  the  amount  of 


THE  TAX  LAW.  21 

capital  invested  in  such  banking  business  in  such  tax  dis- 
trict on  the  first  day  of  June  preceding.  Such  capital  shall 
be  assessed  as  personal  property  to  the  banker  in  whose  name 
such  business  is  carried  on. 

§  26.  Notice  of  assessment  to  bank  or  banking  association — 

The  assessors  of  every  tax  district  shall  within  ten  days  after 
they  have  completed  the  assessment  of  the  stock  of  a  bank 
or  banking  association,  give  written  notice  to  such  bank  or 
banking  association  of  such  assessment  of  the  shares  of  its 
respective  shareholders  and  no  personal  or  other  notice  to 
such  shareholders  of  such  assessment  is  required. 

§  27.  Reports  of  corporations. —  The  president  or  other 
proper  officer  of  every  moneyed  or  stock  corporation  deriv- 
ing an  income  or  profit  from  its  capital  or  otherwise  shall, 
on  or  before  June  fifteenth,  deliver  to  one  of  the  assessors 
of  the  tax  district  in  which  the  company  is  liable  to  be  taxed 
and,  if  such  tax  district  is  in  a  county  embracing  a  portion 
of  the  forest  preserve,  to  the  comptroller  of  the  state,  a  writ- 
ten statement  specifying: 

1.  The  real  property,  if  any,  owned  by  such  company,  the 
tax  district  in  which  the  same  is  situated  and,  unless  a  rail- 
road corporation,  the  sums  actually  paid  therefor. 

2.  The  capital  stock  actually  paid  in  and  secured  to  be 
paid  in  excepting  therefrom  the  sums  paid  for  real  prop- 
erty and  the  amount  of  such  capital  stock  held  by  the  state 
and  by  any  incorporated  literary  or  charitable  institution, 
and 

3.  The  tax  district  in  which  the  principal  office  of  the  com- 
pany is  situated  or  in  case  it  has  no  principal  office,  the  tax 
district  in  which  its  operations  are  carried  on. 

Such  statement  shall  be  verified  by  the  officer  making  the 
same  to  the  effect  that  it  is  in  all  respects  just  and  true.  If 
such  statement  is  not  made  within  twenty  days  after  the  fif- 
teenth day  of  June,  or  is  insufficient,  evasive  or  defective, 
the  assessors  may  compel  the  corporation  to  make  a  proper 
statement  by  mandamus. 

§  28.  Penalty  for  omission  to  make  statement. — In  case  of 
neglect  to  furnish  such  statements  within  thirty  days  after 


22  THE  TAX  LAW. 

the  time  above  provided,  the  company  so  neglecting  shall  forfeit  to  the 
people  of  this  state  for  each  statement  so  omitted  to  be  furnished,  the 
sum  of  two  hundred  and  fifty  dollars,  and  it  shall  be  the  duty  of  the 
attorney-general  to  prosecute  for  such  penalty  upon  information  which 
shall  be  furnished  him  by  the  comptroller.  Upon  such  statement  being 
furnished  and  the  costs  of  the  suit  being  paid,  the  comptroller,  if  he  shall 
be  satisfied  that  such  omission  was  not  willful,  may,  in  his  discretion, 
discontinue  such  suit. 

§  28-a.  County  clerks  to  furnish  data  respecting  corporations. — 
Between  the  first  and  fifteenth  days  of  June  in  tl^  year  nineteen  hun- 
dred and  six,  the  county  clerk  in  each  county  of  the  state,  excepting 
counties  containing  a  city  of  the  second  class  and  counties  wholly  situate 
within  the  corporate  limits  of  a  city,  shall  prepare  from  the  records  in 
his  office  and  mail  to  each  of  the  town  clerks  in  his  said  county,  a  certi- 
fied statement  containing  the  names  of  every  stock  corporation,  incor- 
porated within  the  five  years  next  preceding  the  first  day  of  June,  nine- 
teen hundred  and  six,  whose  principal  business  office  or  chief  place  of 
business  is  designated  in  its  certificate  of  incorporation  as  being  in  such 
town  or  in  any  village  or  hamlet  therein,  together  with  the  fact  of  such 
designation  and  the  names  and  addresses  of  the  directors  of  each  such 
corporation  so  far  as  said  county  clerk  can  discover  the  same  from  the 
certificate  of  incorporation  or  from  the  latest  certificate  of  election  of 
directors  of  such  corporation  filedv  in  his  office.  Annually  thereafter, 
between  the  first  and  fifteenth  days  of  June,  said  county  clerk  shall  fur- 
nish to  such  town  clerks  the  several  statements  aforesaid  containing  the 
above  facts  with  reference  to  stock  corporations  whose  certificates  of  in- 
corporation have  been  filed  with  him  since  his  last  preceding  annual 
statements  to  said  several  town  clerks.  Each  town  clerk  receiving  such 
statement  shall  forthwith  file  the  same  in  his  office  and  mail  a  notice 
of  such  filing  to  each  of  the  assessors  of  his  town.  (Added  by  L.  1906, 
chap.  425,,  taking  effect  May  11,  1906.) 

§  29.  Assessment  of  real  property  of  nonresident. —  The  real  property 
of  nonresidents  of  the  tax  districts  shall  be  designated  in  a  separate 
part  of  the  assessment-roll  and  if  it  be  a  tract  subdivided  into  lots  or 
parts  of  a  tract  so  subdivided,  the  assessors  shall: 

1.  Designate  it  by  its  name,  if  known  by  one,  or  if  not  distinguished 
by  a  name  or  the  name  is  unknown,  state  by  what  lands  it  is  bounded. 

2.  Place  in  the  first  column  the  numbers  of  all  unoccupied  lots  of  any 
subdivided   tract,   without   the   names   of  the   owner,   beginning   at   the 
lowest  number  and  proceeding  in  numerical  order  to  the  highest,  but  the 
entry  of  the  name  of  the  owner  shall  not  affect  the  validity  of  the  assess- 
ment. 

3.  In  the  second  column  and  opposite  the  number  of  each  lot,  the 
quantity  of  land  therein. 

4.  In  the  third  column  and  opposite  the  quantity,  the  full  value  thereof. 

5.  If  it  be  a  part  of  a  lot,  the  part  must  be  distinguished  by  boundaries 
or  in  some  other  way  by  which  it  may  be  identified.     If  any  such  real 
property  be  a  tract  not  subdivided  or  whose  subdivisions  can  not  be  ascer- 
tained by  the  assessors,  they  shall  certify  in  the  roll  that  such  tract  is 
not  subdivided,  or  that  they  can  not  obtain  correct  information  of  the 
subdivisions  and  shall  set  down  in  the  proper  column  the  quality  and 


THE  TAX  LAW.  23 

valuation  as  herein  directed.  If  the  quantity  to  be  assessed  is  a  part 
only  of  a  tract,  that  part,  or  the  part  not  liable,  must  be  particularly 
described. 

§  30.  Surveys  and  maps  of  nonresident  real  property. —  If  the  assessors 
shall  deem  it  necessary  to  have  an  actual  survey  made,  to  ascertain  the- 
quantity  of  any  lot  or  tract  of  nonresident  real  property  divided  by  a 
town  line,  they  shall  notify  the  supervisor,  who  shall  cause  the  necessary 
surveys  to  be  made  at  the  expense  of  the  town.  If  a  part  only  of  a  tract 
of  real  property  is  liable  to  taxation  as  nonresident  and  the  assessors 
can  not  otherwise  designate  such  part,  they  shall  notify  the  supervisor 
of  the  town,  who  shall  cause  a  survey  and  two  manuscript  maps  to  be 
made  for  the  purpose  of  ascertaining  the  situation  and  quantity  of  such 
part.  One  of  such  maps  shall  be  delivered  to  the  county  treasurer  and 
by  him  to  be  transmitted  to  the  comptroller  in  case  the  county  in  which 
the  land  is  situated  embraces  a  part  of  the  forest  preserve;  and  in  other 
counties  it  shall  be  retained  by  him.  The  other  map  shall  be  delivered 
to  the  assessors,  who  shall  then  complete  the  assessment  of  the  tract  and 
deposit  the  map  in  the  town  clerk's  office  for  the  information  of  future 
assessors.  The  expense  of  making  such  survey  shall  be  immediately 
repaid  to  the  supervisor  out  of  the  county  treasury  and  added  by  the 
board  of  supervisors  to  the  tax  on  such  tract,  distinguishing  it  from  the 
ordinary  tax. 

§  31.  Corporations  how  assessed. —  The  assessors  shall  as- 
sess corporations  liable  to  taxation  in  their  respective  tax 
districts  upon  their  assessment-rolls  in  the*  following 
manner : 

1.  In  the  first  column  the  name  of  each  corporation,  and 
under  its  name  the  amount  of  its  capital  stock  paid  in  and 
secured  to  be  paid  in;  the  amount  paid  by  it  for  real  prop- 
erty then  owned  by  it  wherever  situated ;  the  amount  of  all 
surplus  profits  or  reserve  funds  exceeding  ten  per  centum 
of  their  capital,  after  deducting  therefrom  the  amount  of 
said  real  property  and  the  amount  of  its  stock,  if  any,  be- 
longing to  the  state  and  to  incorporated  literary  and  chari- 
table institutions. 

2.  In  the  second  column  the  quantity  of  real  property  ex- 
cept special  franchises  owned  by  such  corporation  and  situ- 
ated within  their  tax  district. 

3.  In  the  third  column  the  actual  value  of  such  real  prop- 
erty, except  special  franchises. 

4.  In  the  fourth  column  the  amount  of  the  capital  stock 
paid  in  and  secured  to  be  paid  in,  and  of  all  such  surplus 


24  THE  TAX  LAW. 

profits  or  reserve  funds  as  aforesaid,  after  deducting  the 
sums  paid  out  for  all  the  real  estate  of  the  company,  wherever 
the  same  may  be  situated,  and  then  belonging  to  it,  and  the 
amount  of  stock,  if  any,  belonging  to  the  people  of  the  state 
.and  to  incorporated  literary  and  charitable  institutions. 

5.  In  the  fifth  column  the  value  of  any  special  franchise 
owned  by  it  as  fixed  by  the  state  board  of  tax  commissioners. 
(Thus  amended  by  L.  1899,  chap.  712,  taking  effect  October 
1,  1899.) 

§  32.  Assessment  of  agent,  trustee,  guardian  or  executor 

If  a  person  holds  taxable  property  as  agent,  trustee,  guard- 
ian, executor  or  administrator,  he  shall  be  assessed  therefor 
as  such,  with  the  addition  to  his  name  of  his  representative 
character,  and  such  assessment  shall  be  carried  out  in  a 
separate  line  from  his  individual  assessment. 

§  33.  Assessment  of  omitted  property. —  The  assessors  of 
any  tax  district  shall,  upon  their  own  motion,  or  upon  the 
application  of  any  taxpayer  therein,  enter  in  the  assessment- 
roll  of  the  current  year  any  property  shown  to  have  been 
omitted  from  the  assessment-roll  of  the  preceding  year,  at 
the  valuation  of  that  year,  or  if  not  then  valued,  at  such 
valuation  as  the  assessors  shall  determine  for  the  preceding 
year,  and  such  valuation  shall  be  stated  in  a  separate  line 
from  the  valuation  of  the  current  year. 

§  34.  Debts  owing  to  nonresidents  of  the  United  States,  how 
assessed. — Every  agent  in  any  county  of  a  nonresident  credi- 
tor having  debts  owing  to  him,  taxable  in  any  county  of  the 
state,  shall  annually,  on  or  before  June  first,  furnish  to  the 
county  treasurer  of  the  county  where  the  debtor  re- 
sides, a  true  and  accurate  statement  verified  by  his  oath, 
of  such  debts  owing  on  the  first  day  of  May  next  pre- 
ceding in  each  town  or  ward  in  such  county.  The 
county  treasurer  shall,  immediately  upon  the  receipt  of 
such  statement,  make  out  and  transmit  to  the  assess- 
ors of  every  tax  district  in  the  county  in  which  any  such 
debtor  resides,  a  copy  of  so  much  of  such  statement  as  re- 
lates to  the  tax  district  of  such  assessors,  with  the  name  of 


THE  TAX  LAW.  25 

the  creditor.  The  assessors  on  receipt  of  such  statement 
from  the  county  treasurer  shall,  within  the  time  in  which 
they  are  required  to  complete  the  assessment-roll,  enter 
therein  the  name  of  such  nonresident  creditor,  and  the  aggre- 
gate amount  due  him  in  such  tax  district  on  the  first  day  of 
May  next  preceding,  in  the  same  manner  as  other  personal 
property  is  entered  on  the  roll,  adding  the  name  of  the 
debtor  owing  such  debt.  Any  agent  neglecting  or  refusing 
without  good  cause  to  furnish  such  statement  to  the  county 
treasurer  shall  forfeit  to  the  county  in  which  the  debtor 
resides  the  sum  of  five  hundred  dollars,  recoverable  by  the 
district  attorney,  if  the  existence  of  such  debts  was  known 
to  the  agent. 

§  35.  Notice  of  completion  of  assessment-roll. — The  as- 
sessors shall  complete  the  assessment-roll  on  or  before  the 
first  day  of  August,  and  make  out  one  copy  thereof,  to  be  left 
with  one  of  their  number,  and  forthwith  cause  a  notice  to 
be  conspicuously  posted  in  three  or  more  public  places  in  the 
tax  district,  stating  that  they  have  completed  the  assessment- 
roll,  and  that  a  copy  thereof  has  been  left  with  one  of  their 
number  at  a  specified  place,  where  it  may  be  seen  and  exam- 
ined by  any  person  until  the  third  Tuesday  of  August  next 
following,  and  that  on  that  day  they  will  meet  at  a  time 
and  place  specified  in  the  notice  to  review  their  assessments. 
Upon  application  by  a  nonresident  owner  of  real  estate,  hav- 
ing real  estate  in  more  than  one  tax  district,  the  assessors 
may  fix  a  time  subsequent  to  the  third  Tuesday  in  August, 
but  not  later  than  the  thirty-first  day  of  August,  for  a  hear- 
ing and  to  review  their  assessment.  In  any  city  the  notice 
shall  conform  to  the  requirements  of  the  law  regulating  the 
time,  place  and  manner  of  revising  assessments  in  such  city. 
During  the  time  specified  in  the  notice  the  assessor  with 
whom  the  roll  is  left  shall  submit  to  the  inspection  of  every 
person  applying  for  that  purpose.  (Amended  by  L.  1904, 
chap.  385,  in  effect  April  26,  1904.) 

§  36.  Hearing  of  complaints. — The  assessors  shall  meet 
at  the  time  and  place  specified  in  such  notice,  and  hear  and 
determine  all  complaints  in  relation  to  such  assessments 
brought  before  them,  and  for  that  purpose  they  may  adjourn 
from  time  to  time.  Such  complainants  shall  file  with  the 
assessors  a  statement,  under  oath,  specifying  the  respect  in 
which  the  assessment  complained  of  is  incorrect,  which  veri- 


26  THE  TAX  LAW. 

fication  must  be  made  by  the  person  assessed  or  whose  prop- 
erty is  assessed,  or  by  some  person  authorized  to  make  such 
statement,  and  who  has  knowledge  of  the  facts  stated  therein. 
The  assessors  may  administer  oaths,  take  testimony  and  hear 
proofs  in  regard  to  any  such  complaint  and  the  assessment 
to  which  it  relates.  If  not  satisfied  that  such  assessment  is 
erroneous,  they  may  require  the  person  assessed,  or  his  agent 
or  representative,  or  any  other  person,  to  appear  before  them 
and  be  examined  concerning  such  complaint,  and  to  produce 
any  papers  relating  to  such  assessment  with  respect  to  his 
property  or  his  residence  for  the  purpose  of  taxation.  If 
any  such  person,  or  his  agent  or  representative,  shall  will- 
fully neglect  or  refuse  to  attend  and  be  so  examined,  or  to 
answer  any  material  question  put  to  him,  such  person  shall 
not  be  entitled  to  any  reduction  of  his  assessments.  Minutes  ' 
of  the  examination  of  every  person  examined  by  the  assessors 
upon  the  hearing  of  any  such  complaint  shall  be  taken  and 
filed  in  the  office  of  the  town  or  city  clerk.  The  assessors 
shall,  after  said  examination,  fix  the  value  of  the  property 
of  the  complainant  and  for  that  purpose  may  increase  or 
diminish  the  assessment  thereof. 

§  37.  Correction  and  verification  of  tax-roll. — When  the 
assessors  or  a  majority  of  them,  shall  have  completed  their 
roll,  they  shall  severally  appear  before  any  officer  of  their 
county,  authorized  by  law  to  administer  oaths  and  shall 
severally  make  and  subscribe  before  such  officer  an  oath  in 
the  following  form :  "  We,  the  undersigned,  do  severally 
depose  and  swear  that  we  have  set  down  in  the  foregoing 
assessment-roll  all  the  real  estate  situated  in  the  tax  district 
in  which  we  are  assessors,  according  to  our  best  informa- 
tion ;  and  that,  with  the  exception  of  those  cases  in  which 
the  value  of  the  said  real  estate  has  been  changed  by  reason 
of  proof  produced  before  us,  and  with  the  exception  of  fehose 
cases  in  which  the  value  of  any  special  franchise  has  been 
fixed  by  the  state  board  of  tax  commissioners,  we  have 
estimated  the  value  of  the  said  real  estate  at  the  sum  which 
a  majority  of  the  assessors  have  decided  to  be  the  full  value 
thereof;  and,  also,  that  the  said  assessment  roll  contains  a 
true  statement  of  the  aggregate  amount  of  the  taxable  per- 
sonal estate  of  each  and  every  person  named  in  such  roll 
over  and  above  the  amount  of  debts  due  from  such  persons, 
respectively,  and  excluding  such  stocks  as  are  otherwise  tax- 


THE  TAX  LAW.  27 

able,  and  such  other  property  as  is  exempt  by  law  from 
taxation,  at  the  full  value  thereof,  according  to  our  best 
judgment  and  belief/'  which  oath  shall  be  written  or  printed 
011  said  roll,  signed  by  the  assessors  and  certified  by  the 
officer,  (Thus  amended  by  L.  1899,  chap.  712,  taking  effect 
October  1,  1899.) 

§  38.  Filing  of  roll  and  notice  thereof. — In  cities  the  as- 
sessment roll  when  thus  completed  and  verified  shall  be 
filed  on  or  before  September  first,  in  the  office  of  the  city 
clerk,  there  to  remain  for  fifteen  days  for  public  inspec- 
tion. The  assessors  shall  forthwith  cause  a  notice  to  be 
posted  conspicuously  in  at  least  three  public  places  in  the  tax 
district  and  to  be  published  in  one  or  more  newspapers,  if 
any,  published  in  the  city,  that  such  assessment  roll  has  been 
finally  completed  and  stating  that  it  has  been  so  filed  and 
will  be  open  to  public  inspection.  At  the  expiration  of 
such  fifteen  days,  the  city  clerk  shall  deliver  such  roll  to 
a  supervisor  of  the  tax  district  embraced  therein.  In  towns, 
when  the  assessment  roll  shall  have  been  thus  completed 
and  verified,  the  assessors  shall  make  two  copies  thereof, 
one  of  which  shall  be  retained  by  them  for  the  use  of  them- 
selves and  their  successors  in  office,  and  the  other  of  which, 
duly  certified  by  the  said  assessors  to  be  a  copy  of  said  as- 
eessment  roll,  shall,  on  or  before  the  fifteenth  day  of  Sep- 
tember, be  filed  in  the  office  of  the  town  clerk,  and  which 
shall  thereupon  become  a  public  record.  The  assessors  shall 
forthwith  cause  a  notice  to  be  posted  conspicuously  in  at 
least  three  public  places  in  the  tax  district  and  to  be  pub- 
lished in  one  or  more  newspapers,  if  any,  published  in  the 
town,  that  such  assessment  roll  has  been  finally  completed 
and  stating  that  such  certified  copy  has  been  so  filed.  The 
said  original  assessment  roll  shall  on  or  before  the  first  day 
of  October  be  delivered  to  a  supervisor  of  the  tax  district 
embraced  therein.  Notwithstanding  the  provisions  of  this 
section,  the  board  of  supervisors  of  any  county  may  de- 
termine the  number  of  copies  of  the  town  assessment  rolls  of 
the  towns  of  such  county  to  be  made,  by  whom  such  copies 
shall  be  made,  the  date  when  the  certified  copy  of  the  town 
assessment  roll  shall  be  filed  in  the  office  of  the  town 
clerk,  and  the  date  when  the  orginal  assessment  roll  shall  be 
delivered  to  the  supervisor  of  the  town.  (Thus  amended  by 
L.  1901,  chap.  358,  and  L.  1904,  chap.  279,  in  effect  April 
13,  1904.) 


28  THE  TAX  LAW. 

§  39.  Assessors  to  apportion  valuation  of  railroad,  tele- 
graph, telephone,  cr  pipe  line  companies  between  school  dis- 
tricts.—  The  assessors  of  each  town  in  which  a  railroad,  tele- 
graph, telephone  or  pipe  line  company  is  assessed  upon  property  lying  in 
more  than  one  school  district  therein,  shall,  within  fifteen  days  after  the 
final  completion  of  the  roll,  apportion  the  assessed  valuation  of  the  prop- 
erty of  each  of  such  corporations  among  such  school  districts.  Such  ap- 
portionment shall  be  signed  by  the  assessors  or  a  majority  of  them,  and 
be  filed  with  the  town  clerk  within  five  days  thereafter,  and  thereupon 
the  valuation  so  fixed  shall  become  the  valuation  of  such  property  in 
such  school  district  for  the  purpose  of  taxation.  In  case  of  failure  of 
the  assessors  to  act,  the  supervisor  of  the  town  shall  make  such  appor- 
tionment on  request  of  either  the  trustees  of  any  school  district  or  of 
the  corporation  assessed.  The  town  clerk  shall  furnish  the  trustees  a 
certified  statement  of  the  valuations  apportioned  to  their  respective  dis- 
tricts. In  case  of  any  alteration  in  any  school  district  affecting  the  valu- 
ation of  such  property,  the  officer  making  the  same  shall  fix  and  deter- 
mine the  valuations  in  the  districts  affected  for  the  current  year. 

§  40.  Neglect  or  omission  of  duty  by  assessors. —  The  as- 
sessors, in  the  execution  of  their  duties,  shall  use  the  forms. 
and  follow  the  instructions  transmitted  to  them,  from  time 
to  time,  by  the  commissioners  of  taxes.  If  any  assessor 
shall  neglect  or  omit  to  perform  any  duty,  the  other  as- 
sessors shall  perform  such  duty  and  shall  certify  upon  the 
assessment-roll  the  name  of  the  delinquent  assessor,  stating 
therein  the  cause  of  such  omission,  and  the  assessment-roll, 
when  otherwise  made  and  completed  in  accordance  with  the 
requirements  of  this  article,  shall  be  deemed  to  be  the  as- 
sessment-roll of  all  the  assessors.  If  the  assessors  shall 
neglect  to  meet  for  the  purpose  of  hearing  grievances  any 
person  aggrieved  by  the  assessment  may  appeal  to  the  board 
of  supervisors  at  its  next  meeting,  which  shall  have  the 
same  power  to  review  and  correct  such  assessment  as  the 
assessors  have  under  this  article.  If  any  assessors  shall 
refuse  or  neglect  to  perform  any  duty  or  do  any  act  re- 
quired of  him  by  this  article,  he  shall  forfeit  to  the  county 
the  sum  of  fifty  dollars,  to  be  recovered  by  the  district 
attorney. 

§  41.  Abandonment  of  lot  divisions. —  Whenever  more 
than  ten,  years  shall  have  elapsed  after  the  subdivision  of 
nnv  tract  of  land  into  lots,  plots  or  sites,  with  or  without 
proposed  streets,  the  owner  of  such  tract,  or  of  any  part 


THE  TAX  LAW.  29 

thereof  composed  of  two  or  more  contiguous  lots  may,  by  an 
instrument  in  writing,  duly  executed  and  acknowledged  and 
describing  such  land,  disclaim  and  abandon  such  subdivision 
including  any  streets  not  opened,  accepted  or  used  by  the 
public,  and  which  are  not  necessary  for  the  use  of  an  owner 
or  occupant  of  any  part  of  said  tract;  and  thereupon  such 
subdivision,  as  to  the  lands  described  in  such  instrument, 
shall  be  deemed  abandoned  and  of  no  effect;  and  thereafter 
the  lands  described  therein  shall,  for  the  purpose  of  tax- 
ation, be  regarded  as  a  single  tract.  If  a  map  of  such  sub- 
division has  been  filed  in  the  office  of  the  county  clerk  or 
register  of  deeds,  such  instrument  may  be  recorded  in  said 
office,  and  a  notice  of  such  record  shall  thereupon  be  in- 
dorsed by  the  clerk  or  register  upon  such  map.  This  sec- 
tion shall  not  apply  to  a  county  embracing  a  portion  of  the 
forest  preserve. 

§  42.  Assessment  of  special  franchises. —  The  state  board 
of  tax  commissioners  shall  annually  fix  and  determine  the 
valuation  of  each  special  franchise  subject  to  assessment  in 
each  city,  town,  or  tax  district.  After  the  time  fixed  for 
hearing  complaints  the  tax  commissioners  shall  finally  deter- 
mine the  valuation  of  the  special  franchises,  and  shall  file  with 
the  clerk  of  the  city  or  town  in  which  said  special  franchise 
is  assessed  a  written  statement  duly  certified  by  the  secre- 
tary of  the  board  of  the  valuation  of  each  special  franchise 
assessed  therein  as  finally  fixed  and  determined  by  said 
board;  such  statement  of  valuation  shall  be  filed  with  the 
town  clerk  of  the  respective  towns  within  thirty  days  next 
preceding  the  first  day  of  July  in  each  year;  and  with  the 
clerks  of  cities  of  the  state  within  thirty  days  before  the  date 
set  opposite  the  name  of  each  city  in  the  following  sched- 
ule. In  the  city  of  ISTew  York  such  statement  shall  be  filed 
with  the  department  of  taxes  and  assessments. 

SCHEDULE    OF    DATES    FOR    FILING    OF    ASSESSMENTS    OP 

SPECIAL  FRANCHISES. 

Name  of  City.  Date.          Name  of  City.  Date. 

Rochester,  April  1st.  Auburn,  May  1st. 

Jamestown,  April  1st.  Schenectady,  June  1st. 

Ithaca,  April  1st.  Corning,  June  1st. 

Glovorsville,  April  1st.  Hornellsville,  June   1st. 

Xow  York  city,         April   1st.  Oswcgo,  J-ine   1st. 


30 


THE  TAX  LAW. 


Name  of  City.                      Date.           Name  of  City.  Date. 

North  Tonawanda,    July  1st.  Hudson,  July  1st. 

Olean,  July  1st.  Amsterdam,  July  1st. 

Syracuse,  July  1st.  Binghamton,  July  1st. 

Cohoes,  July  1st.  Geneva,  July  1st. 

Ogdensburg,  July  1st.  Middletown,  July  1st. 

Dunkirk,  July  1st.  Johnstown,  July  1st. 

Troy,  July  1st.  Fulton,  July  1st. 

Rome,  July  1st.  Plattsburgh,  July  1st. 

Watertown,  July  1st.  Tonawanda,  July  1st. 

Elmira,  July  1st,  Rensselaer,  July  1st. 

Lockport,  July  1st.  Oneida,  July  1st. 

Utica,  July  1st.  Cortland,  July  1st. 

Poughkeepsie,  July  1st.  Yonkers,  October  1st. 

Little  Falls,  July  1st.  New  Rochelle,  October  1st. 

Watervliet,  July  1st.  Albany,  October  1st, 

Niagara  Falls,  July  1st.  Mount  Vernon,     October  1st. 

Kingston,  July  1st.  Buffalo,  December  1st. 

Newburgh,  July  1st. 

Each  city  or  town  clerk  shall,  within  five  days  after  the 
receipt  by  him  of  the  statement  of  assessment  of  a  special 
franchise  by  the  state  board,  deliver  a  copy  of  such  state- 
ment certified  by  him  to  the  assessors  or  other  officers 
charged  with  the  .duty  of  making  local  assessments  in  each 
tax  district  in  said  city  or  town  and  to  the  assessors  of 
villages  and  commissioners  of  highways  within  their  re- 
spective towns  and  villages.  The  valuations  of  every  special 
franchise  as  so  fixed  by  the  state  board  shall  be  entered  by 
the  assessors  or  other  officers  in  the  proper  column  of  the 
assessment-roll  before  the  final  revision  and  certification  of 
such  roll  by  them,  and  become  part  thereof  with  the  same 
force  and  effect  as  if  such  assessment  had  been  originally 
made  by  such  assessor  or  other  officer.  If  a  special  fran- 
chise assessed  in  a  town  is  wholly  within  a  village,  the  valu- 
ation fixed  by  the  state  board  for  the  town  shall  also  be  the 
valuation  for  the  village.  If  a  part  only  of  such  special  fran- 
chise is  in  a  village,  or  is  in  a  village  situated  in  more  than 
one  tax  district,  it  shall  be  the  duty  of  the  village  assessors 
to  ascertain  and  determine  what  portion  of  the  valuation  of 
such  franchise,  as  the  same  has  been  fix*ed  by  the  state  board, 
shall  be  placed  upon  the  tax  roll  for  village  purposes.  The 
valuation  apportioned  to  the  town  shall  be  the  assessed 
valuation  for  highway  purposes,  and  in  case  part  of  such 
special  franchise  shall  be  assessed  in  a  village  and  part 
thereof  in  a  town  outside  a  village,  the  commissioners  of 


THE  TAX  LAW.  31 

highways  of  the  town  and  village  shall  meet  on  the  third 
Tuesday  in  August  in  each  year  and  apportion  the  valuation 
of  such  special  franchises  between  such  town  outside  the 
village  and  such  village  for  highway  purposes.  In  case  of 
disagreement  between  them  the  decision  of  the  supervisor  of 
the  town  shall  be  final.  The  town  assessors  shall  make  an 
apportionment  among  school  districts  at  the  time  and  in  the 
manner  required  by  section  thirty-nine  of  this  chapter.  The 
valuation  so  fixed  by  the  state  board  shall  be  the  assessed 
valuation  on  which  all  taxes  based  on  such  special  franchise 
in  the  city,  town  or  village  for  state,  municipal,  school  or 
highway  purposes  shall  be  levied  during  the  next  ensuing 
year.  It  shall  not  be  necessary  for  the  state  board  of  tax 
commissioners  to  give  notice  to  any  person,  copartnership, 
association  or  corporation  of  the  valuation  of  a  special  fran- 
chise located  in  any  village  for  village  purposes  except  in 
a  case  where  such  valuation  is  required  to  be  made  for  such 
village  purposes  by  the  state  board  of  tax  commissioners. 
The  assessors  or  other  taxing  officer,  or  other  local  officer 
in  any  city,  town  or  village,  or  any  state  or  county  officer, 
shall  on  demand  furnish  to  the  state  board  of  tax  commis- 
sioners any  information  required  by  such  board  for  the 
purpose  of  determining  the  value  of  a  special  franchise. 
(Added  by  L.  1899,  chap.  712,  and  amended  by  L.  1900, 
chap.  254 ;  L.  1902,  chap.  112,  and  L.  1904,  chap.  382,  §  2,  in 
effect  April  26,  1904.) 

L.  1904,  ch.  382. 

§  2.  This  act  shall  not  relate  to  the  assessment  of  special 
franchises  in  the  city  of  Buffalo  made  or  to  be  made  by  the 
state  board  of  tax  commissioners  in  the  year  nineteen  hun- 
dred and  four  for  the  purpose  of  raising  the  annual  taxes  of 
said  city  of  Buffalo  for  the  fiscal  year  beginning  July  first, 
nineteen  hundred  and  four. 

§  3.  Except  as  provided  in  section  two  hereof,  this  act 
shall  take  effect  immediately. 

§  43.  Report  to  state  board  of  tax  commissioners. — 
Every  person,  copartnership,  association  or  corporation  sub- 
ject to  taxation  on  a  special  franchise,  shall,  within  thirty 
days  after  this  section  takes  effect,  or  within  thirty  days  after 
such  special  franchise  is  acquired,  make  a  written  report  to 
the  state  board  of  tax  commissioners  containing  a  full  de- 
scription of  every  special  franchise  possessed  or  enjoyed  by 
such  person,  copartnership,  association  or  corporation,  a  copy 
of  the  special  law,  grant,  ordinance,  or  contract  under  which 
the  same  is  held,  or  if  possessed  or  enjoyed  under  a  general 
law,  a  reference  to  such  law,  a  statement  of  any  condition, 


32  THE  TAX  LAW. 

obligation  or  burden  imposed  upon  such  special  franchise,  or  under 
which  the  same  is  enjoyed,  together  with  any  other  information  relating 
to  the  value  of  such  special  franchise,  required  by  the  state  board.  The 
state  board  of  tax  commissioners  may  from  time  to  time  require  a  fur- 
ther or  supplemental  report  from  any  such  person,  copartnership,  asso- 
ciation or  corporation,  containing  information  and  data  upon  such 
matters  as  it  may  specify.  Every  report  required  by  this  section  shall 
have  annexed  thereto  the  affidavit  of  the  president,  vice-president,  secre- 
tary or  treasurer  of  the  association  or  corporation,  or  one  of  the  per- 
sons or  one  of  the  members  of  the  copartnership  making  the  same,  to  the 
effect  that  the  statements  contained  therein  are  true.  Such  board  may 
prepare  blanks  to  be  used  in  making  the  reports  required  by  this  section. 
Every  person,  copartnership,  association  or  corporation  failing  to  make 
the  report  required  by  this  section,  or  failing  to  make  any  special  report 
required  by  the  state  board  of  tax  commissioners  within  a  reasonable 
time  specified  by  it,  shall  forfeit  to  the  people  of  the  state  the  sum 
of  one  hundred  dollars  for  every  such  failure  and  the  additional  sum  of 
ten  dollars  for  each  day  that  such  failure  continues,  and  shall  not  be 
entitled  to  review  the  assessment  by  certiorari,  as  provided  by  section 
forty-five  of  this  chapter.  (Added  by  L.  1899,  chap.  712,  taking  effect 
October  I,  1899.) 

§  44.  Hearing  on  special  franchise  assessment. —  On  making 
an  assessment  of  a  special  franchise,  the  state  board  of  tax  com- 
missioners shall  immediately  give  notice  in  writing  to  the  person, 
copartnership,  association  or  corporation  affected,  -and  to  each 
city  or  town  in  which  such  special  franchise  is  subject  to  assess- 
ment, stating  in  substance  that  such  assessment  has  been  made, 
the  total  valuation  of  such  special  franchise,  and  the  valuation 
thereof  in  each  city,  town  or  tax  district;  and  that  the  board 
will  meet  at  its  office  in  the  city  of  Albany  on  a  day  specified  in 
such  notice,  which  must  not  be  less  than  twenty  nor  more  than 
thirty  days  from  the  date  of  the  notice,  to  hear  and  determine 
any  complaint  concerning  such  assessment.  But  no  notice  need 
be  given  any  such  town  unless  the  supervisor  thereof  shall  at 
least  fifteen  days  prior  to  the  time  fixed  for  such  hearing  fib 
with  said  board  a  request  in  writing  for  notice  thereof.  Such 
notice  must  be  served  at  least  ten  days  before  the  day  fixed  for 
the  hearing;  and  it  may  be  served  on  a  copartnership,  asso- 
ciation or  corporation,  by  mailing  a  copy  thereof  to  it  at  its 
principal  office  or  place  of  business  and  on  a  person,  either  per- 
sonally or  by  mailing  it  to  him  at  his  place  of  business  or  last 
known  place  of  residence;  and  on  a  city  or  town  by  mailing  it 
to  the  mayor  of  such  citv  or  the  supervisor  of  such  town  at  the 
address  specified  in  such  request.  A  city  or  town  entitled  to 
notice  under  this  section,  shnll  have  the  right  to  be  heard  and  to 
file  affidavits  and  other  proofs  in  respect  to  the  valuation  of  such 
special  franchise.  Section  thirty-six  of  this  chapter  applies  so 
far  as  practicable  to  a  hearing  by  the  state  board  of  tax  com- 
missioners under  this  section.  (Added  by  L.  1890,  cliap.  712, 
taking  effect  October  1.  1899.  and  amended  by  L.  1906,  cliap. 
458,  taking  effect  Hfmi  15,  1906.) 

§  45.  Certiorari  to  review  assessment. —  An  assessment  of  a 
special  franchise  by  the  state  board  of  tax  commissioners  may  be 


THE  TAX  LAW.  33 

reviewed  in  the  manner  prescribed  by  article  eleven  of  this  chap- 
ter, and  that  article  applies  so  far  as  practicable  to  such  an 
assessment,  in  the  same  manner  and  with  the  same  force  and 
effect  as  if  the  assessment  had  been  made  by  local  assessors;  a 
petition  for  a  writ  of  certiorari  to  review  the  assessment  must  be 
presented  within  fifteen  days  after  the  completion  and  filing  of 
the  assessment-roll,  and  the  first  posting  or  publication  of  the 
notice  thereof  as  required  by  law.  Such  writ  must  run  to  and  be 
answered  by  said  state  board  of  tax  commissioners  and  no  writ 
of  certiorari  to  renew  any  assessment  of  a  special  franchise  shall 
run  to  any  other  board  or  officer  unless  otherwise  directed  by  thfl 
court  or  a  judge  granting  the  writ.  An  adjudication  made  in 
the  proceeding  instituted  by  such  writ  of  certiorari  shall  be 
binding  upon  the  local  assessors  and  any  ministerial  officer  who 
performs  any  duty  in  the  collection  of  said  assessment  in  the 
same  manner  as  though  said  local  assessors  or  officers  had  been 
parties  to  the  proceeding.  The  state  board  of  tax  commissioners 
on  filing  with  the  city,  town  or  village  clerk  a  statement  of  the 
valuation  of  a  special  franchise,  shall  give  to  the  person,  co- 
partnership, association  or  corporation  affected  written  notice 
that  such  statement  has  been  filed,  and  such  notice  may  be 
served  on  a  copartnership,  association  or  corporation  by  mailing 
a  copy  thereof  to  it  at  its  principal  office  or  place  of  business, 
and  on  a  person  Cither  personally  or  by  mailing  it  to  him  at  his 
place  of  business  or  last  known  place  of  residence.  (Added  by 
L.  1899,  chap.  712,  taking  effect  October  1,  189T/,  and  amended 
by  L.  1900,  chap.  254,  taking  effect  March  29,  1900.) 

§  45a.  Id;  appearance  by  state  board  by  special  counsel; 
payment  of  his  costs,  expenses  and  disbursements. —  In  any 
proceeding  for  the  review  of  an  assessment  of  a  special  fran- 
chise made  by  the  state  board  of  tax  commissioners,  said  state 
board  of  tax  commissioners  is  authorized  to  appear  by  counsel 
to  be  designated  by  the  attorney-general.  The  compensation  of 
such  counsel  and  the  necessary  and  proper  expenses  and  dis- 
bursements, including  the  expense  of  procuring  the  evidence  of 
experts,  incurred  or  made  by  him  in  the  defense  of  such  pro- 
ceeding, and  upon  any  appeals  therein,  shall  when  audited  and 
allowed  as  are  other  charges  against  such  tax  district,  be  a  chargo 
upon  the  tax  district  upon  whose  rolls  appears  the  assessment 
sought  to  be  reviewed.  Where,  in  one  proceeding,  there  is  re- 
viewed the  assessment  of  a  special  franchise  in  more  than  one 
tax  district,  separate  accounts  shall  be  rendered  for  said  costs, 
expenses  and  disbursements  to  the  proper  officer  of  each  of  said 
tax  districts  and  audited  and  allowed  by  him  as  aforesaid.  For 
the  purposes  of  this  section,  the  city  of  New  York  shall  be 
doomed  one  tax  district.  (Added  by  L.  1906,  chap.  155,  in  effect 
April  6,  1906.) 

§  46.  Deduction  from  special  franchise  tax  for  local  pur- 
poses.—  If,  when  the  tax  assessed  on  any  special  franchise  is 


34  THE  TAX  LAV/. 

due  and  payable  under  the  provisions  of  law  applicable  to 
the  city,  town  or  village  in  which  the  tangible  property  is 
located,  it  shall  appear  that  the  person,  copartnership,  asso- 
ciation or  corporation  affected  has  paid  to  such  city,  town 
or  village  for  its  exclusive  use  within  the  next  preceding 
year,  under  any  agreement  therefor,  or  under  any  statute  re- 
quiring the  same,  any  sum  based  upon  a  percentage  of  gross 
earnings,  or  any  other  income,  or  any  license  fee,  or  any 
sum  of  money  on  account  of  such  special  franchise,  granted 
to  or  possessed  by  such  person,  copartnership,  association,  or 
corporation,  which  payment  was  in  the  nature  of  a  tax,  all 
amounts  so  paid  for  the  exclusive  use  of  such  city,  town, 
or  village  except  money  paid  or  expended  for  paving  or 
repairing  of  pavement  of  any  street,  highway  or  public  place, 
shall  be  deducted  from  any  tax  based  on  the  assessment 
made  by  the  state  board  of  tax  commissioners  for  city,  town 
or  village  purposes,  but  not  otherwise;  and  the  remainder 
shall  be  the  tax  on  such  special  franchise  payable  for  city, 
town  or  village  purposes.  The  chamberlain  or  treasurer  of 
a  city,  the  treasurer  of  a  village,  the  supervisor  of  a  town, 
or  other  officer  to  whom  any  sum  is  paid  for  which  a  person, 
copartnership,  association,  or  corporation  is  entitled  to  credit 
as  provided  in  this  section,  shall,  not  less  than  five  nor  more 
than  twenty  days  before  a  tax  on  a  special  franchise  is  pay- 
able, make  and  deliver  to  the  collector  or  receiver  of  taxes 
or  other  officer  authorized  to  receive  taxes  for  such  city, 
town  or  village,  his  certificate  showing  the  several  amounts 
which  have  been  paid  during  the  year  ending  on  the  day 
of  the  date  of  the  certificate.  On  the  receipt  of  such  certifi- 
cate the  collector,  receiver  or  other  officer  shall  immediately 
credit  on  the  tax  roll  to  the  person,  copartnership,  associa- 
tion or  corporation  affected  the  amount  stated  in  such  cer- 
tificate, on  any  tax  levied  against  such  person,  copartnership, 
association  or  corporation  on  an  assessment  of  a  special  fran- 
chise for  city,  town  or  village  purposes  only,  but  no  credit 
shall  be  given  on  account  of  such  payment  or  certificate  in 
any  other  year,  nor  for  a  greater  sum  than  the  amount  of  the 
special  franchise  tax  for  city,  town  or  village  purposes,  for 
the  current  year;  and  he  shall  collect  and  receive  the  bal- 
ance, if  any,  of  such  tax  as  required  by  law.  (Added  by  L. 
1899,  chap.  712,  taking  effect  October  1,  1899.) 


THE  TAX  LAW.  35 

§  47.  Special  franchise  tax  not  to  affect  other  tax. —  The  im- 
position or  payment  of  a  special  franchise  tax  as  provided 
in  this  chapter  shall  not  relieve  any  association,  copartner- 
ship or  corporation  from  the  payment  of  any  organization 
tax  or  franchise  tax  or  any  other  tax  otherwise  imposed  by 
article  nine  of  this  chapter,  or  by  any  other  provision  of  law; 
but  tangible  property  subject  to  a  special  franchise  tax  situ- 
ated in,  upon,  under  or  above  any  street,  highway,  public 
place  or  public  waters,  as  described  in  subdivision  three  of 
section  two  shall  not  be  taxable  except  upon  the  assessment 
made  as  herein  provided  by  the  state  board  of  tax  commis- 
sioners. (Added  ~by  L.  1899,  chap.  712,  taking  effect  Octo- 
ler  1,  1899.) 


36  THE  TAX  LAW. 


AETICLE  III. 
EQUALIZATION  OF  ASSESSMENT  AND  LEVY  OF  TAX. 

Section  50.  Equalization  by  board  of  supervisors. 

51.  Description  of  real  property  of  nonresidents. 

52.  Review  of  assessments  against  nonresident  owners  of  rents 

reserved. 

53.  Correction  of  errors  by  board  of  supervisors. 

54.  Reassessment  of  property  illegally  assessed. 

55.  Levy  of  tax  by  supervisors. 

56.  Tax-roll  and  collector's  warrant. 

57.  Statement  of  taxes  upon  certain  corporations  by  clerk  of 

supervisors. 

58.  Statement  of  valuation  to  be  furnished  to  comptroller. 

59.  Abstract  of  warrant  to  be  furnished  county  treasurer. 

60.  Certain  errors  in  roll  to  be  corrected. 

§  50.  Subd.  1.  Equalization  by  board  of  supervisors. —  The  board  of 
supervisors  of  each  county  in  this  state,  at  its  annual  meeting,  shall 
examine  the  assessment-roils  of  the  several  tax  districts  in  the  county, 
for  the  purpose  of  ascertaining  whether  the  valuations  in  one  tax  district 
bear  a  just  relation  to  the  valuations  in  all  the  tax  districts  in  the 
county;  and  the  board  may  increase  or  diminish  the  aggregate  valua- 
tions of  real  estate  in  any  tax  district,  by  adding  or  deducting  such 
sum  upon  the  hundred,  as  may,  in  its  opinion,  be  necessary  to  produce 
a  just  relation  between  all  the  valuations  of  real  estate  in  the  county; 
but  it  shall,  in  no  instance,  except  as  provided  in  subdivision  two  of 
this  section,  change  the  aggregate  valuations  of  all  the  tax  districts 
from  the  aggregate  valuation  thereof  as  made  by  the  assessors. 

Subd.  2.  The  board  of  supervisors  in  any  county  of  the  state  having 
a  population  of  more  than  fifty-five  thousand  and  less  than  sixty  thou- 
sand inhabitants  according  to  the  federal  enumeration  next  preceding 
the  passage  of  this  act  and  which  adjoins  a  city  of  the  first  class  may, 
in  its  discretion,  when  examining  the  assessment  rolls  of  the  several 
tax  districts  of  the  county,  as  above  provided,  exclude  from  the  tax 
rolls  of  said  districts,  to  be  prepared  by  said  board,  such  parcels  of  real 
property  as  have  been  struck  down  to  the  county  at  a  tax  sale  and  not 
redeemed  as  provided  in  section  one  hundred  and  fifty-two  of  this  act : 
No  such  properties  shall  be  so  excluded  from  said  tax  rolls  except  by 
a  resolution  of  said  board  adopted  at  an  annual  meeting  by  a  vote  of  a 
majority  of  the  members  thereof.  Whenever  such  real  property  is  so 
excluded  from  the  tax  rolls  by  the  board  the  total  of  the  assessed  valua- 
tions of  the  real  estate  of  the  several  tax  districts,  as  the  same  appear 
on  the  completed  tax  rolls,  shall  be  the  aggregate  valuation  of  the  tax- 
able real  estate  in  the  county.  (Thus  amended  by  L.  1905,  chap.  447.) 

Commissioners  for  equalization  of  taxes,  see  L.  1896,  chap.  820. 

§  51.  Description  of  real  property  of  nonresidents. —  The  board  of 
supervisors  of  each  county,  at  its  annual  meeting,  shall  examine  the 
assessment-rolls  of  the  several  tax  districts,  and  shall  make  such 
changes  in  the  descriptions  of  the  real  property  of  nonresidents  as  may 
be  necessary  to  render  such  descriptions  sufficiently  definite  for  the 
purposes  of  collection  of  taxes  by  sale  thereof.  If  a  sufficiently 
definite  description  can  not  be  obtained  during  the  session,  the 
board  shall  cause  the  same  to  be  obtained  for  the  next  annual 


THE  TAX  LAW.  37 

session,  and  the  property  shall  not  be  taxed  until  such  de- 
scription is  obtained,  and  shall  then  be  taxed  for  the  year 
so  omitted,  in  the  manner  provided  for  taxing  omitted 
lands. 

§  52.  Review  of  assessment  against  nonresident  owners  of 
rents  reserved. —  If  an  assessment  of  taxable  rents  shall  have 
been  made  against  any  person  in  any  tax  district  of  which 
he  is  not  an  actual  resident,  the  board  of  supervisors  of  the 
county  shall  have  the  same  power  and  authority  in  all  re- 
spects, and  it  shall  be  its  duty  to  correct  such  assessments 
as  to  the  valuation  of  such  rents  and  as  to  the  gross  amount 
for  which  such  persons  shall  be  assessed  therefor,  as  the  as- 
sessors of  a  tax  district  have  as  to  the  assessment  of  personal 
property  of  an  actual  resident  of  such  tax  district.  The 
board  may  reduce  the  amount  of  any  such  assessment,  if 
necessary,  to  make  such  assessment  just  when  compared  with 
the  other  assessments  of  property  upon  such  roll. 

§  53.  Correction  of  errors  by  board  of  supervisors If  it 

shall  be  made  to  appear  to  the  board  of  supervisors  of  any 
county,  upon  the  verified  petition  of  the  assessors  of  any 
tax  district: 

First.  That  any  property  taxable  therein  has,  by  any  mis- 
take in  transcribing  or  copying  the  assessment-roll  of  the 
preceding  year,  been  placed  on  the  assessment-roll  delivered 
to  the  supervisor,  at  a  valuation  less  than  actually  appear- 
ing upon  the  original  roll  signed  by  the  assessors,  such 
board  shall  insert  in  the  assessment-roll  of  the  current  year 
an  assessment  of  the  property  upon  the  valuation  equal  to 
the  difference  between  the  actual  valuation  made  by  the  as- 
sessors and  the  amount  at  which,  by  such  mistake,  the  prop- 
erty was  placed  upon  the  roll  of  the  preceding  year,  and  tax 
the  same  at  the  rate  per  centum  imposed  upon  property  in 
such  tax  district  in  the  year  in  which  the  mistake  occurred. 

Second.  That  any  taxable  property  therein  has  been 
omitted  from  the  assessment-roll  of  the  preceding  year,  such 
board  shall  place  the  same  on  the  roll  of  the  current  year  at 
its  valuation  for  the  preceding  year,  to  be  fixed  by  the  as- 
sessors in  their  petition,  and  shall  tax  the  same  at  the  rate 
per  centum  of  the  preceding  year. 


38  THE  TAX  LAW. 

Third.  That  taxable  property  has  been  omitted  from  the 
assessment-roll,  for  the  current  year,  such  board  shall  place 
the  same  thereon  at  a  valuation  to  be  fixed  by  the  assessors 
in  their  petition,  and  shall  tax  the  same  at  the  rate  per 
centum  of  the  current  year. 

A  copy  of  the  petition  under  the  second  or  third  subdi- 
vision of  this  section,  with  a  notice  of  the  presentation 
thereof  to  the  board  of  supervisors,  shall  be  served  person- 
ally on  the  person  alleged  to  be  liable  to  taxation  for  the 
land  omitted  from  the  assessment-roll,  at  least  ten  days  be- 
fore the  meeting  of  the  board  of  supervisors ;  and  the  board 
of  supervisors  shall  take  no  action  on  such  petition,  unless 
proof  of  the  personal  service  of  such  petition  and  notice  be 
made  to  them  by  affidavit.  The  board  of  supervisors  shall 
give  to  the  person  alleged  to  be  liable  to  taxation  for  such 
omitted  land,  an  opportunity  to  be  heard,  and  on  such  hear- 
ing and  review  the  board  of  supervisors  shall  have,  as  to 
such  omitted  property  all  the  powers  of  the  assessors  of  a 
tax  district  in  reviewing  and  correcting  the  assessment-roll. 
The  whole  amount  of  tax  levied  upon  land  or  property 
omitted  in  the  tax  levy  of  the  preceding  year  shall  be  de- 
ducted from  the  aggregate  of  taxation  to  be  levied  on  the 
tax  district  for  the  current  year  before  such  tax  is  levied. 

§  54.  Reassessment  of  property  illegally  assessed. —  When- 
ever by  the  final  judgment  of  a  court  of  competent  jurisdic- 
tion, it  appears  to  the  board  of  supervisors  that  any  property 
liable  to  taxation  in  any  year  was  erroneously  or  illegally 
assessed,  and  that  by  reason  of  such  erroneous  or  illegal  as- 
sessment, such  property  did  not  become  subject  to  taxation 
for  such  year,  the  board  shall  place  the  same  on  the  roll  of 
the  current  year  at  the  valuation  thereof,  if  any,  fixed  by 
the  assessors  for  such  preceding  year ;  and  in  case  no  valus- 
tion  was  fixed  by  the  assessors,  such  property  shall  be  as- 
sessed by  the  board  at  such  valuation  as  they  may  determine 
for  the  preceding  year.  Before  fixing  such  valuation,  the 
board  of  supervisors  shall  give  to  the  owners  of  such  prop- 
erty, at  the  time  of  the  assessment  by  the  board,  a  notice  of 
at  least  five  days  and  an  opportunity  to  be  heard,  and  on 
such  hearing,  the  board  shall  have,  as  to  such  property,  all 


THE  TAX  LAW.  39 

the  powers  of  the  assessors  of  a  tax  district  in  reviewing 
and  correcting  an  assessment-roll.  Such  property  shall  be 
taxed  at  the  rate  per  centum  of  such  preceding  year.  The 
whole  amount  of  tax  on  property  levied  in  pursuance  of  this 
section  shall  be  deducted  from  the  aggregate  of  taxation  to 
be  levied  on  the  tax  district  for  the  current  year,  before  such 
tax  is  levied. 

§  55.  Levy  of  tax  by  supervisors. —  The  board  of  supervis- 
ors of  each  county  shall,  at  its  annual  meeting,  levy  the 
taxes  'for  the  county,  including  the  state  tax,  upon  the  valu- 
ations as  equalized  by  it  and  estimate  and  set  down  in  a 
separate  column  in  the  assessment-roll  of  each  tax  district 
therein,  opposite  to  the  sums  set  down  as  the  valuation  of 
real  and  personal  property  or  property  of  incorporated  com- 
panies or  of  the  taxable  rents  reserved,  the  sum  to  be  paid 
as  a  tax  thereon,  including  the  state  tax,  as  fixed  by  the 
comptroller.  Such  assessment-roll  shall,  when  the  warrant 
is  annexed  thereto,  become  the  tax-roll  of  the  tax  district, 
and  a  copy  thereof  shall  be  delivered  to  the  proper  super- 
visor, who  shall  deliver  it  to  the  clerk  of  the  proper  city  or 
town  to  be  kept  by  him  for  its  use. 

§  56.  Tax-roll  and  collector's  warrant. —  On  or  before  De- 
cember fifteenth  in  each  year  the  board  of  supervisors  shall 
annex  to  the  tax-roll  a  warrant  under  the  seal  of  the  county, 
signed  by  the  chairman  and  clerk  of  the  board,  command- 
ing the  collector  of  each  tax  district,  to  whom  the  same  is 
directed  to  collect  from  the  several  persons  named  in  said 
roll  the  several  sums  mentioned  in  the  last  column  thereof, 
opposite  their  respective  names,  except  taxes  upon  the  shares 
of  sitock  of  banks  and  banking  associations,  on  or  before 
the  first  day  of  the  following  February,  and  further  com- 
manding him  to  pay  over  on  or  before  that  date  all  mon- 
eys so  collected  appearing  011  said  roll,  to  the  treasurer 
of  the  county,  if  he  be  a  collector  of  a  city  or  a  division 
thereof,  or  if  he  be  a  collector  of  a  town : 

1.  To  the  commissioners  of  highways  of  the  town,  such 
sum  as  shall  have  been  raised  for  the  support  of  highways 
and  bridges  therein. 


40  THE  TAX  LAW. 

2.  To  the  overseers  of  the  poor  of  the  town,  such  sum  as 
shall  have  been  levied,  to  be  expended  by  such  overseers  for 
the  support  of  the  poor  therein. 

3.  To  the  supervisor  of  the  town,  all  the  moneys  levied 
therein,  to  defray  any  other  town  expenses  or  charges. 

4.  To  the  treasurer  of  the  county,  the  residue  of  the  money 
so  to  be  collected. 

If  the  law  shall  direct  the  taxes  levied  for  any  local  or 
special  purpose  in  a  city  or  town,  to  be  paid  to  any  person 
or  officer  other  than  those  named  in  this  section,  the  war- 
rant shall  be  varied  so  as  to  conform  to  such  direction.  The 
warrant  shall  authorize  the  collector  to  levy  such  taxes  by 
distress  and  sale,  in  case  of  nonpayment.  The  corrected 
assessment-roll,  or  a  fair  copy  thereof,  shall  be  delivered  by 
the  board  of  supervisors  to  the  collector  of  the  tax  district 
on  or  before  December  fifteenth,  in  each  year.  (Thus 
amended  by  L.  1901,  chap.  158,  taking  effect  March  22, 
1901,  and  L.  1901,  chap.  550,  taking  effect  April  25,  1901.) 

§  57.  Statement  of  taxes  upon  certain  corporations  by  clerk 
of  supervisors. —  The  clerk  of  each  board  of  supervisors 
shall,  within  five  days  after  the  tax  warrant  is  completed, 
deliver  to  the  county  treasurer,  a  statement  showing  the 
names,  valuation  of  property  and  the  amount  of  tax  of 
every  railroad  corporation  and  telegraph,  telephone  and 
electric-light  line  in  each  tax  district  in  the  county,  and  on 
refusal  or  neglect  so  to  do,  shall  forfeit  to  the  county  the 
sum  of  one  hundred  dollars,  to  be  sued  for  by  the  district 
attorney  in  the  name  of  the  county. 

§  58.  Statement  of  valuation  to  be  forwarded  to  comp- 
troller.—  The  clerk  of  each  board  of  supervisors  shall, 
on  or  before  the  second  Monday  in  December,  transmit  to 
the  comptroller,  in  the  form  to  be  prescribed  by  such  comp- 
troller, a  certificate  or  return  of  the  aggregate  assessed  and 
equalized  valuation  of  the  real  and  personal  estate  in  each 
tax  district  as  the  valuation  of  such  real  estate  has  been  cor- 
rected by  such  board,  and  the  amount  of  tax  assessed  thereon 
for  town,  city,  school,  county  and  state  purposes.  Also  the 
names  of  the  several  incorporated  companies  liable  to  taxa- 


THE  TAX  LAW.  41 

tion  in  such  county,  the  nature  of  their  business,  the  amount 
of  the  capital  stock  paid  in  and  secured  to  be  paid  in  by  each, 
the  amount  of  real  and  personal  property  of  each  as  put 
down  by  the  assessors,  or  by  it,  the  amount  of  taxes  assessed 
on  each,  and  the  amount  of  personal  property  on  which  each 
such  corporation  is  exempt  on  account  of  the  payment  of 
state  taxes  on  its  capital.  In  the  city  of  J$ew  York  such 
report  shall  be  made  by  the  clerk  of  the  board  of  aldermen, 
and  for  the  purpose  of  making  such  report  he  may  require 
any  department  or  board  of  such  city  to  furnish  the  neces- 
sary information. 

§  59.  Abstract  of  warrant  to  be  furnished  county  treasurer. — 
On  or  before  the  twentieth  day  of  December  in  each  year, 
the  clerk  of  the  board  of  supervisors  shall  transmit  to  the 
treasurer  of  the  county  an  abstract  of  the  tax-rolls,  stating 
the  "names  of  the  collectors,  the  amount  of  money  which 
each  is  to  collect,  the  purpose  for  which  it  is  to  be  collected, 
and  the  persons  to  whom  and  the  time  when  it  is  to  be  paid. 
The  county  treasurer,  on  receiving  such  account,  shall  charge 
to  each  collector  the  amount  to  be  collected  by  him. 

§  60.  Certain  errors  in  roll  to  be  corrected. —  The  assess- 
ment of  a  non-resident  parcel  of  real  estate  in  the  resident 
portion  of  the  roll,  the  assessment  of  a  resident  parcel  of  real 
estate  in  the  non-resident  portion  of  the  roll,  an  error  in  the 
name  of  the  owner  or  occupant  or  the  assessment  of  a  parcel 
of  real  estate  to  the  name  of  a  deceased  person  or  to  his 
estate,  shall  not  render  the  assessment  invalid  or  render  the 
tax  levied  on  the  valuation  of  said  real  estate  invalid.  The 
board  of  supervisors  of  each  county  may  at  any  time  before 
levying  the  tax  as  provided  in  article*  three  of  this  act,  at 
the  request  of  the  supervisor  of  the  tax  district  in  which  the 
real  estate  is  situated,  correct  any  errors  which  may  come 
to  his  knowledge  in  the  assessment  of  any  parcel  of  real 
estate  in  his  district,  in  either  of  the  cases  mentioned  in  this 
section.  (Added  by  L.  1902,  chap.  171,  in  effect  April  4, 
1902.) 


42  THE  TAX  LAW. 


RETICLE  IT. 

COLLECTION  OF  TAXES. 

Section  70.  Notice  by  collector. 

7 Oa.  Notice  to  nonresidents. 

71.  Collection  of  taxes. 

72.  Collection  of  taxes   assessed   against   stocks   in   banks  and 

banking  associations. 

73.  Payment  of  taxes  by   railroad  and  certain  other   corpora- 

tions. 

74.  Enforcement  of  tax  against  telegraph,  telephone  and  elec- 

tric-light lines. 

75.  Collection  of  taxes  on  rents  reserved. 

76.  Collection  of  unpaid  taxes  on  debts  owing  to  nonresidents 

of  the  United  States. 

77.  Return  of  warrant  for  collection  of  taxes  on  debts  owing 

to  nonresidents;  neglect  to  make  return. 

78.  Remedy  of  tenant  for  taxes  on  part  of  lot. 

79.  Payment  of  taxes  on  part  of  lot. 

80.  Payment  of  taxes  on  state  lands  in  forest  preserve. 

81.  Fees  of  collector. 

82.  Return  by  collector  of  unpaid  taxes. 

83.  Return  when  collection  has  been  enjoined. 

84.  Payment  of  moneys  collected. 

85.  Extension  of  time  for  collection. 

86.  Appointment  of  collector  in  case  of  vacancy. 

87.  When  sheriff  shall  execute  collector's  warrant. 

88.  Satisfaction  of  collector's  bond. 

89.  Unpaid  tax  on  resident  real  property  to  be  reassessed. 

90.  Payment  to  creditors  of  the  county. 

91.  Payment  of  state  tax. 

92.  Accounts  of  county  treasurer  with  comptroller. 

93.  Losses  by  default  of  collector  or  treasurer. 

94.  Receipts  for  taxes. 

95.  Article,  how  applicable. 

§  70.  Notice  by  collector —  Every  collector,  upon  receiv- 
ing a  tax  roll  and  warrant,  shall  forthwith  cause  notice  of 
the  reception  thereof  to  be  posted  in  five  conspicuous  places 
in  the  tax  district,  specifying  one  or  more  convenient  places 
in  such  tax  district,  where  he  will  attend  from  nine  o'clock 
in  the  forenoon  until  four  o'clock  in  the  afternoon,  at  least 
three  days,  and  if  in  a  city,  at  least  five  days,  in  each  week 
for  thirty  days  from  the  date  of  the  notice,  which  shall  be 
the  date  of  the  posting  or  first  publication  thereof,  which 
days  shall  be  specified  in  such  notice,  for  the  purpose  of  re- 
ceiving the  taxes  assessed  upon  such  roll.  The  collector 


THK  TAX  LAW.  43 

shall  attend  accordingly,  and  any  person  may  pay  hit  taxes  to  such  col- 
lector at  the  time  and  place  so  designated,  or  at  any  other  time  or 
place.  In  a  city,  the  notice  in  addition  to  being  posted  shall  be  pub- 
lished once  in  each  week,  for  two  weeks  successively,  in  a  newspaper 
published  in  such  city.  On  the  written  demand  of  a  non-resident 
owner  of  real  property  included  in  such  tax  roll,  and  the  payment  by 
such  owner  to  the  collector  of  the  sum  of  twenty-five  cents,  the  col- 
lector shall  within  twenty-four  hours  after  the  receipt  of  such  de- 
mand mail  in  a  postpaid  envelope  directed  to  such  non-resident  owner, 
to  the  orders  to  be  furnished  in  such  demand,  a  statement  of  the  amount 
of  taxes  assessed  against  such  property  with  a  notice  of  the  dates  and 
places  fixed  by  him  for  receiving  taxes.  (Thus  amended  by  L.  1899, 
chap.  342,  taking  effect  April  17,  1899.) 

I  70*.  Notice  to  non-residents. — A  person  who  is  the  owner  of,  or 
liable  to  assessment  for,  an  interest  in  real  property  situated  and 
liable  to  assessment  and  taxation  in  a  tovvn  in  which  he  is  not  actually 
a  resident  may  file  with  the  town  clerk  of  cuch  town  a  notice  stating 
his  name,  residence  and  post-office  address,  a  description  of  the  prem- 
ises sufficient  to  identify  the  same,  and  if  situated  in  a  village  or  school 
district,  the  name  of  such  village  and  number  and  designation  of  such 
school  district.  The  town  clerk  shall,  within  five  days  after  the  deliv- 
ery of  the  warrants  for  the_  collection  of  taxes  in  such  tax  districts, 
furnish  to  the  collectors  of  the  town,  and  the  collector  of  each  village 
and  school  district  in  which  such  real  property  is  situated,  and  such 
collectors  shall  within  such  time  apply  for,  a  transcript  of  all  notices 
so  filed,  and  such  collectors  shall  within  five  days  after  the  receipt  of 
such  transcript  mail  to  each  person  filing  such  notice,  at  the  post- 
office  address  stated  therein,  a  statement  of  the  amount  of  taxes  due 
on  said  property.  Upon  the  filing  of  such  notice  the  town  clerk  shall 
be  entitled  to  receive  a  fee  of  one  dollar  from  the  person  offering  such 
notice,  which  shall  be  in  full  for  all  services  rendered  hereunder.  (In- 
serted by  L,  1903,  chap.  338.) 

§  71.  Collection  of  taxes. —  After  the  expiration  of  such  period  of 
thirty  days,  the  collector  shall  call,  at  least  once,  on  every  person  taxed 
upon  such  .roll,  whose  taxes  are  unpaid,  at  his  usual  place  of  residence, 
if  he  is  an  actual  inhabitant  of  such  tax  district,  and  demand  payment 
of  the  taxes  charged  to  him  on  his  property.  If  any  person  shall  neg- 
lect or  refuse  to  pay  any  tax  imposed  on  him,  the  collector  shall  levy 
upon  any  personal  property  in  the  county  belonging  to  or  in  the  posses- 
sion of  any  person  who  ought  to  pay  the  tax,  and  cause  the  same  to 
be  sold  at  public  auction  for  the  payment  of  such  tax,  and  the  fees  and 
expenses  of  collection;  and  no  claim  of  property  to  be  made  thereto  by 
any  other  person  shall  be  available  to  prevent  such  sale.  Public  notice 
of  the  time  and  place  of  sale  of  the  property  to  be  sold  shall  be  given 
by  posting  the  same  in  at  least  three  public  placeo  in  the  tax  district 
where  the  sale  is  to  be  made,  at  least  six  days  previous  thereto.  If  the 
proceeds  of  such  sale  shall  be  more  than  the  amount  of  such  tax,  the 
fees  of  the  collection  and  the  expenses  of  the  sale,  the  surplus  shall  be 
paid  to  the  person  against  whom  the  tax  was  assessed.  If  any  other  per- 
son shall  claim  the  surplus,  on  the  ground  that  the  property  sold  belonged 
to  him,  and  such  claim  be  admitted  by  the  person  for  the  payment  of 
whose  tax  the  sale  was  made,  such  surplus  shall  be  paid  to  such  other  per- 


44:  THE  TAX  LAW. 

son.  If  such  claim  be  contested  by  the  person  for  the  pay- 
ment of  whose  tax  the  property  was  sold,  such  surplus  shall 
be  paid  over  by  the  collector  to  the  supervisor  of  the  town, 
who  shall  retain  the  same  until  the  rights  of  the  parties 
thereto  shall  be  determined  by  due  course  of  law,  or  by 
agreement  in  writing  made  by  them  and  filed  with  the  su- 
pervisor. The  collector  upon  payment  of  the  taxes  shall 
state  in  the  column  of  the  tax  roll  provided  therefor,  the  date 
of  such  payment,  and  shall  write  his  name  after  such  dato. 
(Thus  amended  by  L.  1901,  chap.  159,  taking  effect  March 
22,  1901.) 

§  72-  Collection  of  taxes  assessed  against  stocks  in  banks 
and  banking  associations — Every  bank  or  banking  associa- 
tion shall  retain  any  dividend  until  the  delivery  to  the  col- 
lector of  the  tax-roll  and  warrant  of  the  current  year,  and 
within  ten  days  after  such  delivery,  shall  pay  to  such  col- 
lector so  much  of  such  dividend  as  may  be  necessary  to  pay 
any  unpaid  taxes  assessed  on  the  stock  upon  which  such  divi- 
dend is  declared.  In  case  the  owner  of  such  stock  resides 
in  a  place  other  than  where  the  bank  or  banking  association 
is  located,  the  same  power  may  be  exercised  in  collecting 
the  tax  so  assessed  as  is  given  in  case  a  person  has  removed 
from  a  tax  district  in  which  the  assessment  was  made.  The 
tax  so  assessed  shall  be  and  remain  a  lien  on  the  shares  of 
stock  against  which  it  is  assessed  till  the  payment  of  such 
tax,  and  if  the  stock  is  transferred  it  shall  be  subject  to  such 
lien.  The  collector  or  county  treasurer  may  foreclose  such 
lien  in  any  court  of  record,  and  collect  from  the  avails  of 
the  sale  of  the  stock  the  tax  assessed  against  the  same.  In 
addition  thereto,  the  same  remedy  may  be  had  for  the  col- 
lection of  the  tax  on  such  shares  as  is  now  provided  by  law 
for  enforcing  payment  of  personal  tax  against  residents. 

§  73.  Payment  of  taxes  by  railroad  and  certain  other  cor- 
porations.—  Any  railroad,  telegraph,  telephone  or  electric- 
light  company  may,  within  thirty  days  after  receipt  of  no- 
tice by  the  county  treasurer  from  the  clerk  of  the  board  of 
supervisors,  pay  its  tax,  with  one  per  centum  fees,  to  the 
county  treasurer,  who  shall  credit  the  same  with  such  fees 


THE  TAX  LAW.  45 

to  the  collector  of  the  tax  district,  unless  otherwise  required 
by  law.  If  not  so  paid  the  county  treasurer  shall  notify  the 
collector  of  the  tax  district  where  it  is  due,  and  he  shall  then 
proceed  to  collect  under  his  warrant.  Until  such  notice 
from  the  treasurer  the  collector  shall  not  enforce  payment 
of  such  taxes,  but  may  receive  the  same,  with  the  fees  al- 
lowed by  law,  at  any  time. 

§  74.  Enforcement  of  tax  against  telegraph,  telephone  and 
electric-light  lines. —  Collection  of  tax  against  a  telegraph, 
telephone  or  electric-light  line  may  be  enforced  by  sale  of 
the  instruments  and  batteries  connected  with  such  line,  and 
in  case  there  is  not  sufficient  personal  property,  together 
with  such  instruments  and  batteries,  to  pay  such  tax  and 
the  percentage  due  the  collector,  he  shall  return  a  statement 
thereof  to  the  county  treasurer  as  other  unpaid  taxes  are 
returned,  and  the  county  treasurer  shall  proceed  to  sell  such 
part  of  the  line  in  the  tax  district  where  the  tax  was  levied 
as  may  be  necessary  to  satisfy  the  unpaid  taxes  and  per- 
centage, in  the  manner  now  provided  by  law  for  the  sale  of 
lands  on  execution,  and  upon  such  sale  shall  execute  to  the 
purchaser  a  conveyance  of  such  part  of  said  line,  and  the 
purchaser  shall  thereupon  become  the  owner  thereof.  Noth- 
ing herein  contained  shall  be  construed  to  prevent  collection 
of  such  taxes  by  any  procedure  now  provided  by  law. 

§  75.  Collection  of  taxes  on  rents  reserved. —  If  any  tax 
upon  any  such  tax-roll  upon  rents  reserved  is  not  paid,  the 
collector  shall  collect  the  same  by  levy  and  sale  of  the  per- 
sonal property  of  the  persons  against  whom  the  tax  is  levied, 
which  may  be  found  within  the  county.  If  no  sufficient 
personal  property  belonging  to  such  person  can  be  found  in 
the  county,  the  collector  shall  collect  such  tax  of  the  tenant 
or  lessee  in  possession  of  the  premises,  on  which  the  rent  is 
reserved,  in  the  same  manner  as  if  such  tax  had  been  as- 
sessed against  such  tenant  or  lessee.  Every  such  tenant  or 
lessee  paying  any  such  tax,  or  of  whom  any  such  tax  shall 
be  collected,  shall  be  entitled  to  have  the  amount  thereof, 
with  interest,  deducted  from  the  amount  of  rent  reserved 
upon  such  premises,  which  may  be  due  or  may  thereafter 
become  due  thereon,  or  may  maintain  an  action  to  recover 
the  same. 


46  THE  TAX  LAW. 

§  76.  Collection  of  unpaid  taxes  on  debts  owing  to  nonresi- 
dents of  the  United  States. —  If  it  shall  appear  by  the  re- 
turn of  any  collector  that  any  tax  imposed  upon  a  debt 
owing  to  a  person  residing  out  of  the  United  States  remains 
unpaid,  the  county  treasurer  shall,  after  the  expiration  of 
twenty  days  from  such  return,  issue  his  warrant  to  the  sher- 
iff of  any  county  in  this  state  where  any  debtor  of  any  such 
nonresident  creditor  may  reside,  commanding  him  to  make 
of  the  real  and  personal  property  of  such  nonresident  the 
amount  of  such  tax,  to  be  specified  in  a  schedule  annexed 
to  the  warrant,  with  his  fees  and  the  sum  of  one  dollar  for 
the  expense  of  issuing  such  warrant,  and  to  return  the  war- 
rant to  the  treasurer  issuing  the  same,  and  to  pay  over  to 
him  the  money  which  shall  be  collected  by  virtue  thereof, 
except  the  sheriff's  fees,  by  a  day  therein  to  be  specified 
within  sixty  days  from  the  date  thereof.  The  taxes  upon 
several  debts  owing  to  a  nonresident  shall  be  included  in 
one  warrant.  The  taxes  upon  several  debts  owing  to  differ- 
ent nonresidents  may  be  included  in  the  same  warrant,  and 
the  sheriff  shall  be  directed  to  levy  the  sum  specified  in  the 
schedule  annexed,  upon  the  real  and  personal  property  of 
the  nonresidents,  respectively,  opposite  to  whose  names,  re- 
spectively, such  sums  shall  be  written,  with  fifty  cents  for 
the  expenses  of  the  warrant.  Such  warrant  shall  be  a  lien 
upon  and  shall  bind  the  real  and  personal  property  of  the 
nonresidents  against  whom  issued  from  the  time  an  actual 
levy  shall  be  made  upon  any  property  by  virtue  thereof, 
and  the  sheriff  to  whom  the  warrant  shall  be  directed  shall 
proceed  upon  the  same,  in  all  respects,  with  like  effect,  and 
in  the  same  manner,  as  prescribed  by  law,  in  respect  to  exe- 
cution against  property  issued  upon  judgment  rendered  in 
the  supreme  court,  and  shall  be  entitled  to  the  same  fees 
for  his  services  in  executing  the  same,  to  be  collected  in  the 
same  manner. 

§  77.  Return  of  warrant  for  collection  of  taxes  on  debts 
owing  to  nonresidents ;  neglect  to  make  return. —  If  any  sher- 
iff shall  neglect  to  return  any  such  warrant  as  directed 
therein,  or  to  pay  over  any  money  collected  by  him  in  pur- 
suance thereof,  he  shall  be  proceeded  against  in  the  supreme 


THE  TAX  LAW.  47 

court  by  attachment  in  the  same  manner,  and  with  like  ef- 
fect, as  for  similar  neglect  in  reference  to  an  execution  is- 
sued out  of  the  supreme  court  in  a  similar  action,  and  the 
proceedings  therein  shall  be  the  same  in  all  respects.  If 
my  such  warrant  shall  be  returned  unsatisfied,  wholly  or 
partly,  the  county  treasurer  may  obtain  an  order  from  a 
judge  of  the  supreme  court  of  the  district,  or  a  county  judge 
of  the  county,  of  such  treasurer,  issuing  the  warrant,  re- 
quiring sucli  nonresident  or  any  person  having  property  of 
such  nonresident  or  indebted  to  him,  to  appear  and  answer 
concerning  the  property  of  such  nonresident.  The  same 
remedies  and  proceedings  may  be  had  in  the  name  of  such 
county  treasurer  or  comptroller  before  the  officer  granting 
such  order,  and  with  a  like  effect,  as  are  provided  by  law  in 
proceedings  against  a  judgment  debtor  supplementary  to 
execution  against  him,  returned  wholly  or  in  part  unsatis- 
fied. The  expenses  of  a  county  treasurer,  and  such  com- 
pensation as  the  board  of  supervisors  may  allow  him  for 
his  services  under  this  section,  and  for  making  and  trans- 
mitting to  the  assessors  of  the  several  towns  of  his'  county 
an  abstract  or  copy  of  the  statements  of  the  agents  of  non- 
resident creditors,  shall  be  a  county  charge. 

§  78.  Remedy  of  tenant  for  taxes  paid  by  him. — If  a  tax 
upon  real  property  shall  have  been  collected  of  any  occupant 
or  tenant,  and  any  other  person,  by  agreement  or  otherwise, 
ought  to  pay  such  tax,  or  any  part  thereof,  such  occupant  or 
tenant  shall  be  entitled  to  recover,  by  action,  the  amount 
which  such  person  ought  to  have  paid ;  or  to  retain  the  same 
from  any  rent  due  or  accruing  from  him  to  such  person  for 
the  land  so  taxed. 

§  79.  Payment  of  taxes  on  part  of  lot —  The  collector  shall 
receive  the  tax  on  part  of  any  lot,  piece  or  parcel  of  land 
charged  with  taxes,  provided  the  person  paying  such  tax 
shall  furnish  such  particular  specification  of  such  part,  and 
in  case  the  tax  on  the  remainder  thereof  shall  remain  un- 
paid the  collector  shall  enter  such  specification  on  his  return 
to  the  county  treasurer,  clearly  showing  the  part  on  which 
the  tax  remains  unpaid,  and  if  the  part  on  which  the  tax 


48  .      THE  TAX  LAW. 

shall  be  so  paid  shall  be  an  undivided  share,  the  person  pay- 
ing the  same  shall  state  to  the  collector  who  is  the  owner  of 
such  share,  and  the  collector  shall  enter  the  name  of  such 
owner  on  his  account  of  arrears  of  taxes,  and  such  share 
shall  be  excepted  in  case  of  a  sale  for  the  tax  on  the  re- 
mainder. 

§  80.  Payment  of  taxes  on  state  lands  in  forest  preserve — 
The  treasurer  of  the  state,  upon  the  certificate  of  the  comp- 
troller as  to  the  correct  amount  of  such  tax,  shall  pay  the 
tax  levied  upon  state  lands  in  the  forest  preserve,  by  credit- 
ing to  the  treasurer  of  the  county  in  which  such  lands  may 
be  situated,  such  taxes,  upon  the  amount  payable  by  such 
county  treasurer  to  the  state  for  state  tax.  ~No  fees  shall 
be  allowed  by  the  comptroller  to  the  county  treasurer  for 
such  portion  of  the  state  tax  as  is  so  paid. 

§  81.  Fees  of  collector. —  On  all  taxes  paid  within  thirty 
days  from  the  date  of  notice  that  he  has  received  the  roll, 
the  collector  shall  be  entitled  to  receive,  if  the  aggregate 
amount  shall  not  exceed  two  thousand  dollars,  two  per 
centum,  and  otherwise  one  per  centum,  in  addition  thereto. 
On  all  taxes  collected  after  the  expiration  of  such  period 
of  thirty  days,  the  collector  shall  be  entitled  to  receive  five 
per  centum  in  addition  thereto.  The  collector  shall  be  en- 
titled to  receive  from  the  county  treasurer  i?wo  per  centum 
as  fees  for  all  taxes  returned  to  the  county  treasury  as 
unpaid. 

§  82.  Return  by  collector  of  unpaid  taxes — Every  col- 
lector who  makes  and  delivers  to  the  county  treasurer  an  ac- 
count of  unpaid  taxes,  upon  the  tax-roll  annexed  to  his  war- 
rant, which  he  shall  not  have  been  able  to  collect,  verified  by 
his  affidavit,  that  the  sums  mentioned  therein  remain  unpaid, 
and  that  he  has  not,  upon  diligent  inquiry,  been  able  to  dis- 
cover any  personal  property  out  of  which  the  same  could 
be  collected  by  levy  and  sale,  shall  be  credited  by  the  county 
treasurer  with  the  amount  of  such  account.  In  making 
such  return  of  unpaid  taxes,  the  collector  shall  add  thereto 
five  per  centum  of  the  amount  thereof.  In  case  such  tax 
is  uncollected  upon  lands  assessed  to  a  resident  he  shall  also 


THE  TAX  LAW.  49 

state  the  reason  why  the  same  was  not  collected.  Any  col- 
lector who  has  heretofore  failed  in  making  such  return  of 
unpaid  taxes,  may  make  such  return,  whether  his  term  of 
office  has  expired  or  not,  verified  by  his  affidavit,  to  the 
county  treasurer  any  time  within  eight  years  after  such  fail- 
ure and  before  the  lands  against  which  said  taxes  are  as- 
sessed, are  advertised  for  sale  pursuant  to  this  act,  and  in 
case  any  collector  shall  heretofore  or  hereafter  fail  to  add 
said  five  per  centum  the  county  treasurer  shall  add  the  afore- 
said five  per  centum  of  the  amount  of  said  uncollected  tax 
as  aforesaid.  Such  return  shall  be  indorsed  upon  or  at- 
tached to  said  roll,  and  shall  be  in  the  form  to  be  prescribed 
by  the  state  board  of  tax  commissioners.  Such  tax  and  per- 
centage may  be  paid  to  the  county  treasurer  at  any  time  be- 
fore a  return  is  made  to  the  comptroller.  The  county  treas- 
urer in  counties  in  which  lands  are  sold  by  him  for  the  non- 
payment of  taxes,  is  hereby  authorized  to  incur  and  pay 
for  such  expenses  as  he  may  deem  necessary  for  the  exam- 
ination of  collector's  returns  and  descriptions  of  property  to 
be  sold  pursuant  to  this  act,  and  the  procurement  of  proper 
collector's  returns  and  the  examinations  and  procurement  of 
matters  and  facts  as  he  may  deem  necessary  to  make  a  valid 
tax  sale  hereunder,  but  such  expense  shall  not  exceed  the 
amount  of  the  five  per  centum  added  as  aforesaid.  (Thus 
amended  Toy  L.  1901,  chap.  517,  talcing  effect  April  24,  1901.) 

§  83.  Return  when  collection  has  been  enjoined. —  Any  stay, 
lawfully  granted  by  any  court  of  record  by  injunction  or 
other  order  or  proceeding,  of  the  collection  of  any  tax  exist- 
ing at  the  expiration  of  the  period  for  the  collection  of  the 
tax  under  any  warrant  or  process  in  the  hands  of  the  col- 
lector or  other  officer  for  the  collection  thereof,  or  existing  at 
the  time  of  the  expiration  of  the  term  of  office  of  the  col- 
lector or  officer  holding  such  warrant,  shall  operate  as  an 
extension  of  the  time  within  which  such  collector  or  other 
officer  may  collect  such  tax  until  such  stay  is  terminated 
and  for  the  period  of  thirty  days  thereafter.  As  to  all  other 
taxes  to  be  collected  under  any  such  warrant  or  process,  the 
collector  or  officer  holding  the  warrant  or  process  shall  make 
a  return  thereof  within  the  time  prescribed  by  law. 

4 


60  THE  TAX  LAW. 

§  84.  Payment  of  money  collected. —  Every  collector  shall, 
within  one  week  after  the  time  prescribed  in  his  warrant  for 
the  payment  of  the  moneys  directed  therein  to  be  paid,  pay 
to  the  officers  and  persons  specified  therein,  the  sums  re- 
quired in  such  warrant  to  be  paid  to  them  respectively.  The 
officers  and  persons  other  than  the  county  treasurer,  to  whom 
any  such  money  shall  be  paid,  shall  deliver  to  the  collector 
duplicate  receipts  therefor,  one  of  which  duplicates  shall 
be  filed  by  the  collector  with  the  county  treasurer  and  shall 
entitle  him  to  a  credit  in  the  books  of  the  county  treasurer 
for  the  amount  therein  stated  to  have  been  received,  and  no 
other  evidence  of  such  payment  shall  be  received  by  the 
county  treasurer.  If  any  greater  amount  of  taxes  shall  be 
levied  in  any  town  than  the  town  charges  thereof,  and  its 
proportionate  share  of  the  state  taxes  and  county  charges, 
the  surplus  shall  be  paid  by  the  collector  to  the  county  treas- 
urer, who  shall  place  it  to  the  credit  of  such  town,  and  it 
shall  go  to  the  reduction  of  the  tax  upon  the  town  for  the 
succeeding  year. 

§  85.  Extension  of  time  for  collection. —  The  county  treas- 
urer, upon  application  of  the  supervisor  of  any  town  or  com- 
mon council  of  any  city  in  his  county,  may  extend  the  time 
for  collection  of  taxes  remaining  unpaid  to  a  day  not  later 
than  May  first,  following,  in  case  the  collector  shall  pay  over 
all  moneys  collected  by  him  and  make  his  return  of  non- 
resident taxes,  and  renew  his  bond  in  a  penalty  twice  the 
amount  of  the  taxes  remaining  uncollected,  approved  by  the 
proper  officers  upon  filing  the  same,  as  the  original  bond  is 
required  to  be  filed,  and  delivering  a  certified  copy  thereof 
to  such  treasurer.  Receivers  of  taxes  who  have  filed  a  bond 
as  required  by  statute  shall  not  be  required  to  renew  their 
bonds.  This  section  shall  not  affect  any  special  law  relat- 
ing to  the  extension  of  time  for  the  collection  of  taxes,  nor 
be  construed  to  extend  the  time  for  the  payment  of  the  state 
tax  by  the  county  treasurer,  as  required  by  this  chapter. 

County  Law  (L.  1892,  ch.  686),  §  149.  Extension  of  time  for  the 
collection  of  taxes. —  The  county  treasurer  may  extend  the  time  for 
the  collection  of  taxes  in  any  town  or  ward,  but  no  extension  shall  be 
permitted  until  the  collector  of  taxes  of  the  town,  city  or  ward  in 
which  such  extension  shall  be  asked  shall  pay  over  to  the  county  treas- 
urer all  the  taxes  collected  by  him,  and  renew  his  undertaking  as  the 


THE  TAX  LAW.  51 

supervisor  of  his  town  shall  approve,  and  furnish  evidence  ty  his  oath, 
and  other  competent  testimony,  if  any,  as  such  treasurer  shall  re- 
quire, that  he  has  been  unable,  for  cause  stated,  to  collect  all  the  taxes 
within  the  time  required  by  his  warrant;  but  such  extension  shall 
not  in  any  case  be  made  beyond  the  first  day  of  April  in  any  year, 
unless  ninety  per  cent,  of  such  taxes  shall  have  been  collected  and 
paid  over  to  him. 

§  86.  Appointment  of  collector  in  case  of  vacancy If  a  per- 
son chosen  to  the  office  of  collector  of  a  town  shall  refuse  to 
serve  or  be  disabled  from  entering  upon  or  completing  the  du- 
ties of  his  office  from  any  cause,  the  town  board  shall  forth- 
with appoint  a  collector  for  the  remainder  of  the  year,  who 
shall  give  the  same  undertaking,  be  subject  to  the  same  duties 
and  penalties  and  have  the  same  powers  and  compensation  as 
the  collector  in  whose  place  he  was  appointed.  The  supervisor 
of  the  town  shall  forthwith  give  notice  of  such  appointment 
to  the  county  treasurer.  Such  appointment  shall  not  ex- 
onerate the  former  collector  or  his  sureties  from  any  liabil- 
ity incurred  by  him  or  them.  If  a  warrant  shall  have  been 
issued  by  the  board  of  supervisors  before  the  appointment 
of  a  collector  to  fill  a  vacancy  or  before  the  appointment  of 
a  collector  under  this  section,  the  original  warrant,  if  ob- 
tainable, shall  be  delivered  to  the  collector  so  appointed  and 
shall  give  him  the  same  powers  as  if  originally  issued  to  him. 
If  such  warrant  is  not  obtainable,  a  new  one  shall  be  issued 
by  the  chairman  and  clerk  of  the  board  of  supervisors  of  the 
county,  directed  to  the  collector  appointed,  with  the  same 
force  and  effect  as  if  originally  issued  to  him.  Upon  any 
such  appointment,  the  supervisor  of  the  town  or  ward,  if  he 
shall  deem  it  necessary,  may  extend  the  time  limited  for  the 
collection  of  taxes,  for  a  period  not  exceeding  thirty  days, 
and  forthwith  give  notice  of  such  extension  to  the  county 
treasurer. 

§  87.  When  sheriff  shall  execute  collector's  warrant. —  If 
the  collector  of  any  tax  district  in  the  state  shall  neglect  or 
refuse  to  execute  an  official  bond  or  undertaking  as  required 
bv  law,  or  the  supervisor  of  the  town  shall  refuse  or  neglect 
to  approve  and  file  the  same,  within  the  time  prescribed  by 
law,  and  a  new  collector  shall  not  have  been  appointed  within 
ten  days  after  the  time  when  such  a  bond  or  undertaking 
should'have  been  filed,  the  board  of  supervisors  shall  deliver 


52  THE  TAX  LAW. 

the  tax-roll  or  a  copy  thereof  with  the  warrant  annexed,  to  the 
sheriff,  who  shall  give  a  like  undertaking  as  is  required  from 
the  collector,  and  who  shall  then  proceed  with  the  collection  of 
the  taxes  levied  therein  in  like  manner  as  collectors  are  author- 
ized by  law  to  do,  and  with  like  powers  and  subject  to  the  same 
duties  and  obligations.  Every  such  warrant  shall  require  all 
payments  therein  specified  to  be  made  by  the  sheriff  within  sixty 
days  after  the  receipt  of  the  warrant  by  him.  The  expense  of 
the  collection  of  such  taxes  by  him,  if  any,  over  and  above  the 
fees  lawfully  chargeable  by  the  collector,  shall  be  audited  by  the 
board  of  supervisors  and  shall  be  a  charge  upon  the  town. 

§  88.  Satisfaction  of  collector's  bond. —  Upon  the  settlement 
of  the  account  of  taxes  directed  to  be  collected  by  a  collector  in 
any  town  or  city,  except  in  the  city  of  New  York,  the  county 
treasurer  shall,  if  requested,  and  if  the  collector  shall  have  fully 
paid  over  or  duly  accounted  for  all  the  taxes  which  he  was  by 
law  to  collect,  give  to  such  collector  or  any  of  his  sureties,  a 
written  certificate -of  such  settlement,  duly  acknowledged,  and 
upon  the  filing  thereof  in  the  office  of  the  clerk  of  the  county 
where  the  undertaking  is  recorded,  the  clerk  shall  enter  satis- 
faction of  such  undertaking  which  shall  thereby  be  discharged ; 
except  that  in  counties  containing  cities  of  the  first  class  such 
satisfaction  when  so  entered  shall  only  discharge  the  lien  of  said 
bond  or  undertaking  upon  the  real  estate  of  the  collector  and 
his  sureties,  but  the  liability  of  the  collector  and  his  sureties 
upon  such  bond  or  undertaking  for  a  failure  upon  the  part  of 
such  collector  to  pay  over  moneys  collected  by  him  shall  be  in 
no  wise  impaired.  (Thus  amended  by  L.  1899,  chap.  321, 
talcing  effect  April  17,  1899.) 

§  89.  Unpaid  taxes  on  resident  real  property  to  be  reassessed. 
-  When  the  tax  on  any  real  property,  not  assessed  as  non- 
resident, is  returned  as  unpaid  and  so  remains,  the  county  treas- 
urer shall  immediately  deliver  a  transcript  thereof  to  the  super- 
visor of  the  tax  district  in  which  such  tax  was  assessed.  Such 
supervisor  shall,  if  in  his  power,  within  thirty  days  thereafter, 
cause  an  accurate  description  of  such  real  property  to  be  made 
and  returned  to  said  treasurer,  with  the  correct  amount  of 
taxes  thereon,  each  kind  of  tax  being  stated  separately,  and  if 
necessary,  he  may  cause  a  survey  and  map  of  any  of  said  real 
property  to  be  made,  and  the  expense  of  such  survey  and  map 


THE  TAX  LAW.  53 

on,  or  for  each  lot  or  parcel  shall  be  returned  to  said  treasurer, 
and  be  a  legal  charge  upon  such  real  property  and  be  collected 
with  the  taxes  thereon.  The  amount  of  such  tax  shall  bear 
interest  at  the  rate  of  eight  per  centum  per  annum  from  the 
first  day  of  February  until  paid,  or  until  the  sale  of  such  prop- 
erty to  satisfy  such  tax  by  the  county  treasurer,  or  if  the  prop- 
erty is  located  in  a  county  embracing  a  portion  of  the  forest 
preserve,  until  the  return  of  such  unpaid  tax  to  the  comptroller. 
And  such  real  property  and  the  tax  thereon  shall  be  regarded 
for  all  purposes  of  assessment,  collection  and  sale  as  non-resi- 
dent, and  subject  to  all  the  provisions  of  the  tax  law  in  relation 
to  non-resident  real  property  and  non-resident  taxes.  (Thus 
amended  by  L.  1902,  chap.  171,  in  effect  April  4,  1902.) 

§  90.  Payment  to  creditors  of  the  county. —  Each  county 
treasurer  shall  pay  to  the  creditors  of  the  county  from  the 
moneys  paid  to  him  by  the  collectors  of  taxes  of  the  several 
towns  therein,  such  sums  and  in  such  manner  as  the  board 
of  supervisors  of  the  county  direct. 

§  91.  Payment  of  state  tax. —  The  comptroller  shall  charge 
each  county  treasurer  with  the  amount  of  the  state  tax  levied 
on  his  county,  except  the  tax  for  schools,  crediting  him  with 
his  fees,  if  any,  but  no  fees  shall  be  allowed  by  the  comp- 
troller for  such  portion  of  the  state  tax  as  is  credited  by  him 
for  unpaid  nonresident  taxes.  The  county  treasurer  of  each 
county  shall,  after  retaining  his  fees  thereon,  at  the  rate  of 
one  per  centum  thereof,  which  shall  not,  however,  in  any  case 
exceed  fifteen  hundred  dollars,  for  all  taxes  for  state  purposes, 
including  schools,  pay  the  state  tax  to  the  treasurer  of  the  state, 
as  follows :  One-third  of  the  state  tax  exclusive  of  the  state 
tax  for  schools  on  or  before  the  fifteenth  day  of  February, 
one-third  thereof  on  or  before  the  fifteenth  day  of  April,  and 
unless  otherwise  provided  by  law,  the.  balance  thereof  on  or 
before  the  fifteenth  day  of  May  in  each  year,  and  notify  the 
comptroller  of  such  payment.  Whenever  the  state  tax  for 
schools,  payable  by  any  county,  shall  exceed  the  apportionment 
to  such  county  of  state  school  moneys  as  made  by  the  state 
superintendent  of  public  instruction,  in  accordance  with  the 
provisions  of  the  consolidated  school  law,  such  excess  shall  be 
paid  by  the  treasurer  of  such  county  to  the  treasurer  of  the 
state  on  or  before  the  fifteenth  day  of  March  in  each  year, 
and  such  treasurer  shall  notify  the  state  superintendent  of 


54  THE  TAX  LAW. 

public  instruction  of  such  payment.  If  there  are  not  sufficient 
funds  in  the  county  treasury  standing  to  the  credit  of  any 
town  to  pay  the  state  tax  chargeable  thereto,  the  treasurer  shall 
borrow  sufficient  money  upon  the  credit  of  the  county  and  charge 
the  same  against  such  town,  with  interest  thereon  until  the 
same  is  paid.  If  any  county  treasure*  shall  not  pay  over  the 
state  tax,  including  state  tax  for  schools,  as  herein  directed, 
the  comptroller  shall  charge  on  all  sums  withheld  such  rate  of 
interest  as  shall  be  sufficient  to  repay  all  expenditures  incurred 
by  the  state  in  borrowing  money  equivalent  to  the  amount  so 
withheld,  and  such  additional  rate  as  he  shall  deem  proper, 
not  exceeding  ten  per  centum,  from  the  dates  hereinbefore  pro- 
vided for  such  payments  in  each  year,  which  shall  be  regarded 
as  funds  in  the  hands  of  the  county  treasurer  belonging  to  the 
state  and  for  which  his  sureties  and  county  shall  be  liable. 
The  fees  of  the  county  treasurer  for  collecting  and  paying  over 
the  school  tax  shall  be  allowed  and  paid  by  the  superintendent 
of  public  instruction.  (Thus  amended  by  L.  1898,  chap.  361, 
and  L.  1902,  chap.  378,  in  effect  April  27,  1902.) 

§  92.  Accounts  of  county  treasurer  with  comptroller. —  The 
comptroller  shall  state  annually  on  June  first,  the  account  of 
each  county  treasurer,  and  if  any  part  of  a  state  tax  is  unpaid 
at  that  date,  the  comptroller  shall  transmit  by  mail  to  the 
county  treasurer  a  copy  of  such  accounts  and  a  requisition  that 
he  must  pay  the  balance  due  the  state  within  thirty  days,  ami 
if  the  tax  is  not  paid  within  such  time,  the  comptroller  shall, 
unless  he  is  satisfied  by  due  proof  that  the  treasurer  has  not 
received  such  balance,  and  has  used  due  diligence  in  collecting 
the  same,  forthwith  deliver  a  copy  of  the  account  to  the  attorney- 
general,  who  shall  take  the  necessary  proceedings  to  collect  the 
same  of  the  county  treasurer  or  his  sureties  or  otherwise,  with 
interest  as  provided  by  the  last  preceding  section.  The  comp- 
troller may  also,  in  his  discretion,  direct  the  board  of  super- 
visors of  the  county  to  institute  the  necessary  proceedings  on 
the  undertaking  of  such  county  treasurer  and  his  sureties.  The 
comptroller  shall  also  transmit  to  the  board  of  supervisors  on 
or  before  October  tenth,  a  statement  of  account  between  his 
office  and  the  county  treasurer. 

§  93.  Losses    by    default    of    collector   or    treasurer. —  All 

losses  sustained,  and  all  deficiencies  in  any  taxes,  or  in  the 


THE  TAX  LAW.  65 

payments  to  ta  made  therefrom,  by  reason  of  the  default  of 
any  collector,  shall  be  chargeable  to  the  town,  or  city  of  which 
he  is  collector.  If  occasioned  by  the  default  of  the  treas- 
urer of  any  county  in  the  discharge  of  his  official  duties,  such 
losses  shall  be  chargeable  to  such  county.  Any  judgment 
against  such  treasurer  for  any  such  loss  or  deficiency  on  ac- 
count of  the  state  tax  upon  which  an  execution  shall  have 
been  issued  and  returned  unsatisfied  shall  be  conclusive  as 
to  the  fact  of  such  loss  or  deficiency,  and  the  amount  of  such 
deficiency  shall  thereupon  become  a  charge  against  such 
county,  and  the  board  of  supervisors  thereof  shall  add  all 
such  losses  or  deficiencies  to  the  next  year's  taxes  of  such 
town,  city  or  county,  and  levy  the  same  thereon. 

§  9-4.  Receipts  for  taxes. —  The  collector  shall  deliver  a  re- 
ceipt to  each  person  paying  a  tax,  specifying  the  date  of  such 
payment,  the  name  of  such  person,  the  description  of  the 
property  as  shown  on  the  assessment-roll,  the  name  of  the 
person  to  whom  the  same  is  assessed,  the  amount  of  such  tax, 
and  the  date  of  the  delivery  to  him  of  the  assessment-roll 
on  account  of  which  such  tax  was  paid.  For  the  purpose  of 
giving  such  receipt,  each  collector  shall  have  a  book  of  blank 
receipts,  so  arranged  that  when  a  receipt  is  torn  therefrom  a 
corresponding  stub  will  remain.  The  state  board  of  tax 
commissioners  shall  prescribe  the  form  of  such  receipts,  stubs 
and  books  and  they  shall  be  furnished  to  the  collector  by  the 
board  of  supervisors,  at  the  expense  of  the  county.  At  the 
time  of  giving  such  a  receipt,  the  collector  shall  make  the 
same  entries  on  the  corresponding  stub  as  are  required  to  be 
made  on  the  receipt.  Such  book  shall  be  subject  to  public 
inspection  and  shall  be  filed  by  the  collector  with  his  return, 
together  with  the  assessment-roll  in  the  office  of  the  county 
treasurer.  (Thus  amended  by  L.  1897,  chap.  489.) 

§  95.  Article,  how  applicable. —  This  article  shall  apply  to 
all  the  cities  or  towns  of  the  state,  in  so  far  as  the  matters 
herein  provided  for  do  not  conflict  with  the  special  and  local 
laws  of  such  cities  or  towns.  (Added  by  L.  1897,  chap. 
489.) 


56  THE  TAX  LAW, 


AKTICLE  V. 


{Section  100.  Return  of  unpaid  nonresident  taxes. 

101.  Rejection  of  taxes. 

102.  Admission   of  nonresident  taxes   by  comptroller   and   lit 

effect. 

103.  Payment  to   the    county   treasurer    of   excess    of   arrears 

credited. 

104.  Cancellation  of  tax  by  comptroller. 

105.  Transmittal  of  statement  of  cancelled  taxes  to  board  of 

supervisors. 

106.  Correction  of  imperfect  descriptions. 

107.  Nonresident  taxes,  when  and  how  paid  the  comptroller. 

108.  Reduction  of  overcharges. 

109.  Overpaid  taxes. 

§  100.  Return  of  unpaid  nonresident  taxes. —  The  collector 
shall  return  the  original  assessment-roll  to  the  county  treas- 
urer, and  when  the  treasurer  finds  an  account  of  unpaid  taxes 
on  real  property  or  unpaid  taxes  on  corporations,  received  from 
a  collector  to  be  a  true  transcript  of  such  original  assessment 
roll  to  which  the  collector's  warrant  is  attached,  with  the 
descriptions  furnished  by  the  supervisor  as  provided  in  section 
eighty-nine,  he  shall  add  to  it  a  certificate  that  he  has  examined 
and  compared  the  account  with  such  roll  and  found  it  to  be 
correct,  and  after  crediting  the  collector  with  the  amount 
thereof,  he  shall,  except  in  Saint  Lawrence,  Lewis,  Clinton  and 
Oneida  counties,  in  case  his  county  embraces  a  portion  of  the 
forest  preserve,  before  the  first  day  of  May  next  ensuing,  trans- 
mit such  account,  affidavit  and  certificate  to  the  comptroller 
who  may  before  acting  thereon  return  any  such  account  to  the 
county  treasurer  for  correction,  who  shall  make  such  correction 
and  return  to  the  comptroller  in  one  month  thereafter  or  as  the 
comptroller  may  otherwise  direct.  (Thus  amended  by  L.  1898, 
chap.  362,  by  L.  1902,  chap.  171,  in  effect  April  4,  1902,  and  L. 
1906,  chap.  189,  taking  effect  April  11,  1906.) 

§  101.  Rejection  of  taxes. —  The  comptroller  shall  examine 
every  account  of  arrears  of  taxes  on  lands  of  non-residents 
received  from  the  county  treasurer  and  reject  all  taxes  en- 
tered therein,  found  to  be  erroneous,  or  charged  on  lands  im- 
perfectly described,  and  shall  annually  on  or  about  Sep- 
tember first,  transmit  to  each  county  treasurer  a  transcript  of 
the  taxes  of  the  preceding  year  in  any  tax  district  of  his  county, 
which  shall  have  been  rejected  for  any  cause,  with  the  grounds 
of  such  rejection.  The  comptroller  may  correct  the  description 


TITE  TAX  LAW.  57 

of  real  property  in  cases  where  the  error  is  of  such  nature  that 
the  word,  word?  or  figures  necessary  to  correct  the  same  are 
self  evident  from  the  context.  (Thus  amended  ly  L.  1902, 
chap-  171,  in  effect  April  4,  1902.) 

§  102.  Admission  of  nonresident  taxes  by  comptroller  and 
its  effect. —  The  comptroller  shall  admit  all  such  taxes,  prop- 
erly assessed,  and  credit  the  county  treasurer  therewith,  and 
such  account,  when  accepted  by  him,  shall  be  deemed  con- 
clusive evidence  of  the  regularity  and  validity  of  all  taxes 
therein  so  admitted,  and  all  prior  proceedings  in  assessing 
the  lands  and  levying  and  collecting  such  taxes,  except  when 
it  shall  be  satisfactorily  proven  to  the  comptroller  that  any 
such  tax  was  paid  in  the  county,  or  that  there  was  no  legal 
right  to  levy  the  same,  or  that  it  arose  from  a  double  assess- 
ment, the  tax  levied  on  one  of  which  has  been  paid. 

§  103.  Payment  to  the  county  treasurer  of  excess  of  arrears 
credited. —  If  the  arrears  of  taxes  on  lands  of  nonresidents 
credited  to  the  treasurer  of  any  county  by  the  comptroller 
shall  exceed  the  state  tax  in  such  county,  the  comptroller 
shall  pay  such  excess,  or  the  whole  amount  of  such  arrears, 
if  there  be  no  state  tax,  after  deducting  therefrom  any  bal- 
ance due  from  the  county,  to  the  county  treasurer,  and  the 
whole  amount  of  such  arrears  and  taxes  shall  thereafter  be- 
long to  the  state  and  be  collected  for  its  benefit. 

§  104.  Cancellation  of  tax  by  comptroller. —  The  comp- 
troller shall  cancel  any  tax  credited  to  a  county  upon  the 
books  in  his  office,  which  he  shall  discover  after  the  trans- 
mission of  the  annual  transcript  of  rejected  taxes  of  such 
county  to  the  county  treasurer,  to  be  erroneous,  or  charged 
on  lands  imperfectly  described,  and  charge  such  taxes  to  the 
county  in  which  such  lands  shall  lie,  with  the  interest 
thereon  from  March  first,  in  the  year  following  the  levy  of 
the  taxes,  to  February  first  next  after  such  cancellation.  The 
comptroller  shall  cancel  any  tax  returned  as  unpaid  if  it 
shall  be  made  to  appear  to  him  that  previously  to  such  re- 
turn it  was  paid  to  the  collector  or  county  treasurer,  and  if 
it  shall  also  have  been  paid  into  the  state  treasury,  he  shall 
cause  it  to  be  repaid  out  of  the  treasury  to  the  person  by 
whom  such  payment  shall  have  been  made. 


58  THE  TAX  LAW. 

§  105.  Transmittal  of  statement  of  canceled  taxes  to  board 
of  supervisors. —  The  comptroller  shall  transmit  a  transcript 
of  the  returns  of  all  taxes  canceled,  with  the  addition  of  in- 
terest thereon,  to  the  county  treasurer,  who  shall  deliver  a 
copy  thereof  to  a  supervisor  of  the  tax  district  in  which  such 
taxes  were  assessed,  by  whom  it  shall  be  returned  to  the 
board  of  supervisors  at  their  next  annual  meeting.  If  such 
tax  district  shall  have  been  divided  since  the  assessment,  the 
county  treasurer  shall  deliver  such  transcript  to  the  board 
of  supervisors  at  their  next  annual  meeting.  If  any  such 
cancellation  was  by  reason  of  tke  tax  having  been  paid  be- 
fore the  same  was  returned  by  the  county  treasurer,  such 
treasurer,  shall  present  the  transcript  to  the  board  of  super- 
visors of  the  county,  and  the  amount  of  such  tax,  with  the 
interest,  shall  be  collected  by  such  board  of  the  collector  or 
the  county  treasurer  who  made  the  erroneous  returns,  and 
shall  be  paid  into  the  state  treasury. 

§  106.  Correction  of  imperfect  descriptions. —  The  super- 
visor of  the  tax  district  in  which  any  lands  are  situated,  upon 
which  a  tax  shall  have  been  rejected  by  the  comptroller,  or 
shall  have  been  canceled  and  charged  to  the  county  to  which 
it  had  previously  been  credited,  shall  add  to  the  assessment- 
roll  of  the  tax  district  in  which  the  land  is  situated  for  the 
year  during  which  a  transcript  of  the  returns  of  such  taxes 
shall  have  been  forwarded  by  the  comptroller  to  the  county 
treasurer,  an  accurate  description  of  such  lands,  if  he  can 
obtain  the  same,  the  correct  amount  of  taxes  thereon,  the 
tax  of  each  year  and  each  kind  of  tax  separately,  and  shall 
furnish  the  comptroller  with  all  such  maps  and  surveys  of 
such  lands  as  shall  be  required  by  him.  Such  supervisor 
may,  if  necessary,  cause  a  survey  and  map  of  each  lot  or 
parcel  returned  for  more  perfect  description  to  be  made, 
and  the  expense  of  such  survey  and  map  shall  be  a  town 
charge.  The  board  of  supervisors  shall  direct  the  collection 
of  such  taxes  so  added  to  such  assessment-roll,  and  they 
shall  be  considered  the  taxes  of  the  year  in  which  the  de- 
scription shall  be  perfected.  If  any  such  supervisor  shall 
not  fully  comply  with  the  provisions  of  this  section  the 
comptroller  shall  not  thereafter  admit,  but  shall  reject,  all 
such  reassessed,  canceled  or  rejected  taxes  as  may  be  re- 


THE  TAX  LAW.  59 

turned  to  him.  If  such  taxes  are  not  levied  upon  such  lands 
as  herein  required,  the  board  of  supervisors  shall  cause  the 
same,  with  interest  thereon,  to  be  levied  upon  the  tax  dis- 
trict in  which  originally  assessed,  and  collected  with  the 
other  taxes  of  the  same  year.  If  the  tax  district  shall  have 
been  divided  since  such  assessment,  such  taxes  and  interest 
shall  be  apportioned  by  the  board  of  supervisors  among  the 
tax  districts  included  in  the  limits  of  such  original  tax  dis- 
tricts in  such  equitable  manner  as  it  may  deem  proper. 

[L.  1878,  chap.  152,  §  19,  was  repealed  by  the  Tax  Law,  but  L.  1896, 
chap.  951,  amending  such  section,  was  not  repealed,  and  having  been 
passed  at  the  same  session  as  the  Tax  Law,  is,  pursuant  to  section  31 
of  the  Statutory  Construction  Law,  still  in  force,  we  have,  therefore, 
inserted  it  in  this  place.] 

§  19.  Whenever  the  comptroller  shall  have  rejected  any  tax  in  the 
first  instance,  or  have  canceled  and  charged  the  same  to  the  county  to 
which  it  had  previously  been  credited,  the  supervisor  of  the  town  or 
ward  in  which  such  lands  are  situate,  shall,  if  in  his  power,  add  to  the 
assessment-roll  of  such  town  or  ward  for  the  year  during  which  such 
transcript  shall  have  been  forwarded  by  the  comptroller  to  the  county 
treasurer,  an  accurate  description  of  such  lands  and  the  correct  amount 
of  taxes  thereon,  stating  the  tax  of  each  year  and  each  kind  of  tax, 
separately,  and  shall  furnish  the  comptroller  with  all  such  maps  and 
surveys  of  such  lands  as  shall  have  been  required  by  him ;  and,  if  neces- 
sary, he  may  cause  a  survey  and  map  of  each  lot  or  parcel  returned  for 
more  perfect  description  to  be  made  and  the  expense  of  such  survey 
and  map  shall  be  a  charge  upon  such  land  to  be  added  to  the  tax 
thereon,  the  board  of  supervisors  shall  direct  the  collection  of  such 
taxes  and  the  expenses  eo  added  to  such  assessment-roll,  and  they  shall, 
for  all  the  purposes  of  this  act,  be  considered  as  taxes  of  the  year  in 
which  the  description  shall  be  perfected.  If  the  supervisor  of  such  town 
or  ward  shall  not  have  fully  complied  with  the  requirements  of  this  sec- 
tion, the  comptroller  shall  not  thereafter  admit,  but  shall  reject  all  such 
reassessed,  canceled  or  rejected  taxes  as  may  be  returned  to  him. 
Whenever  any  tax  has  been  rejected  by  the  comptroller  and  returned 
to  the  county  to  which  it  had  previously  been  credited,  the  board  of 
supervisors  of  such  county,  or  if  there  be  no  board  of  supervisors  of 
such  county,  then  the  board  of  aldermen  performing  the  duties  of  super- 
visors, shall  direct  that  such  rejected  tax  be  canceled  upon  the  tax-roll 
in  the  office  of  the  treasurer  of  the  county,  for  the  year  or  years  for 
which  it  was  levied. 

I 

§  107.  Nonresident  taxes,  when  and  how  paid  to  comp- 
troller.—  The  comptroller  shall,  at  any  time  after  August 
first,  next  after  receiving  statement  thereof  from  the  county 
treasurer,  furnish  any  person  desiring  to  pay  the  taxes  on 
any  parcel  of  land,  a  certificate  of  the  amount  of  such  taxes, 
interest  and  charges,  and  the  state  treasurer  may  receive 
payment  therefor  upon  such  certificate,  which  shall  be 
countersigned  by  the  comptroller  and  entered  in  the  books 
of  his  office.  Such  interest  shall  begin  August  first,  of  such 


60  THE  TAX  LAW. 

year,  and  be  at  the  rate  of  ten  per  centum  per  annum.  Any 
person  claiming  a  divided  or  undivided  part  in  any  parcel 
may  pay  to  the  state  treasurer  any  part  of  the  amount  due 
thereon,  proportionate  to  the  share  or  interest  claimed  by 
him,  on  the  certificate  of  the  comptroller.  The  remaining 
tax  and  charges  shall  be  a  lien  on  the  residue  of  the  land  or 
interest  only.  If  the  land  has  been  subdivided  since  the 
assessment,  the  comptroller  may  require  a  map  of  the  sub- 
divisions. Any  person  may  pay  the  tax  for  any  one  year  on 
any  tract  or  lot  of  land  without  paying  the  tax  of  any  other 
year. 

§  108.  Deduction  of  overcharges —  If  any  tract  or  lot  of 
land  shall  have  been  returned  as  containing  a  greater  quan- 
tity of  land  than  it  actually  contained,  the  amount  over- 
charged shall  be  deducted.  If  the  tax  shall  have  been  paid 
according  to  such  return,  the  overcharge  shall  be  refunded 
out  of  the  treasury  upon  the  production  to  the  comptroller 
of  satisfactory  proof  of  the  quantity  actually  contained  in 
each  tract  or  lot  at  the  time  of  the  assessment.  JSTo  such 
overcharge  shall  be  canceled  nor  such  over-payments  re- 
funded, unless  application  shall  be  made  to  the  comptroller 
before  the  sale  of  such  lands,  and  within  six  years  after  the 
assessment.  If  the  whole  amount  of  the  tax  shall  have  been 
paid  to  the  county  treasurer  out  of  the  state  treasury,  the 
comptroller  shall  charge  the  amount  so  refunded  with  in- 
terest and  charges  thereon  to  the  treasurer  of  the  county 
to  which  the  tax  was  returned,  and  shall  transmit  an  account 
thereof  to  him.  The  county  treasurer  shall  deliver  such  ac- 
count to  the  board  of  supervisors  at  their  next  annual  meet- 
ing, which  shall  cause  the  amount  thereof  to  be  added  to  the 
taxes  of  the  tax  district  in  which  the  tax  was  assessed,  and 
when  collected  it  shall  be  paid  into  the  treasury  of  the 
county. 

§  109.  Overpaid  taxes. —  If  it  shall  satisfactorily  appear  to 
the  comptroller  that  the  amount  of  any  tax  has  been  paid, 
and  afterwards  other  money  has  been  paid  into  the  state 
treasury  on  account  of  such  tax  or  that  the  amount  of  any 
tax  has  been  overpaid  to  the  treasurer  of  the  state,  he  may 
draw  his  warrant  on  the  treasury  for  the  amount  paid  in 
excess  of  the  tax  due,  in  favor  of  the  person  paying  the  same. 


ARTICLE  VI. 

SALE  BY  COMPTROLLER  FOR  UNPAID   TAXES  AND  REDEMP- 
TION OF  LANDS. 

Section  120.  Notice  of  sale. 

121.  Maps  to  be  furnished  comptroller. 

122.  Sale,  how  conducted. 

123.  Purchases  by  comptroller,  for  state  or  county. 

124.  Withdrawal  from  sale  of  lands  upon  which  the  state  haa 

a  lien. 

125.  Payment  of  bids  and  certificate  of  purchase. 

126.  New  certificate  upon  setting  aside  sale. 

127.  Redemption  of  lands. 

128.  Redemption  of  lands  conjointly  assessed. 

129.  Prohibition  of  the  despoliation  of  lands  sold. 

130.  Notice  of  unredeemed  lands. 

131.  Comptroller's  deed. 

132.  Effect  of  former  deeds. 

133.  Possession  of  lands  by  the  state. 

134.  Notice  to  occupants. 

135.  Certificate  of  nonredemption  and  completion  of  title. 

136.  Redemption  by  occupant  and  certificate  ol  redemption. 

137.  Redemption  by  occupant  before  notice  and  effect  of  failure 

to  redeem. 

138.  Lien  of  mortgage  not  affected  by  tax  sale. 

139.  Redemption  by  mortgagee  before  notice. 

140.  Cancellation  of  sales. 

141.  Setting  aside  cancellation  of  sale. 

142.  Expenses  of  sale. 

143.  Payment  of  moneys  into  state  treasury. 

§  120.  Notice  of  sale —  The  comptroller  may  sell  any 
lands  heretofore  or  hereafter  returned  to  him  for  nonpay- 
ment of  any  tax  thereon,  if  such  tax  and  the  interest  thereon, 
or  any  part  thereof  shall  remain  unpaid  for  one  year  after 
February  first,  following  the  year  in  which  the  tax  was 
levied.  He  shall  make  out  a  list  of  all  such  lands  in  any 
county  and  transmit  to  the  county  treasurer  thereof  at  least 
eighteen  weeks  before  the  commencement  of  the  sale,  a  num- 
ber of  copies  of  such  list  sufficient  to  furnish  five  copies  to 
the  county  treasurer,  two  copies  to  the  county  clerk  and  two 
copies  to  the  clerk  of  each  town  and  city  in  which  such  lands 
are  situated.  The  county  treasurer  shall  transmit  the  same 
to  such  officers.  The  comptroller  shall  publish  such  list  with 
a  notice,  that  on  a  day  specified  therein  and  the  succeeding 


62  THE  TAX  LAW. 

days,  so  much  of  such  lands  as  may  be  necessary  to  discharge 
the  taxes,  interest  and  charges  due  thereon  at  the  time  of 
sale,  will  be  sold  at  public  auction  at  the  capitol  in  the  city 
of  Albany.  Such  list  shall  be  inserted  in  two  newspapers 
published  in  such  county,  once  in  each  week  for  twelve  suc- 
cessive weeks  prior  to  the  commencement  of  the  sale,  and  in 
the  body  of  the  newspapers  and  not  in  a  supplement.  If 
there  are  not  two  newspapers  published  in  the  county,  the 
publication  shall  be  in  two  newspapers  which  the  comptroller 
shall  determine  to  be  most  generally  circulated  in  the  county. 
Due  proof  of  the  publication  of  such  list  and  notice  in  each 
newspaper  shall  be  made  and  filed  in  the  office  of  the  comp- 
troller, within  twenty  days  after  the  last  publication.  The 
expense  of  printing,  publishing  and  transmitting  such  list 
shall  be  audited  by  the  comptroller  and  paid  out  of  the  state 
treasury.  No  error  in  the  description  of  the  lands  in  any 
list  published  in  any  newspaper  shall  render  any  sale  void  or 
in  any  manner  affect  its  validity. 

§  121.  Maps  to  be  furnished  comptroller. — The  comptroller 
may  apply  to  the  supervisor  of  any  town  for  maps  of  any 
tract  of  land  returned  from  such  town  for  nonpayment  of 
taxes,  if  he  deem  it  necessary  in  order  to  test  the  correctness 
of  the  description  thereof,  preparatory  to  a  sale  of  such 
lands,  and  the  supervisor  shall  furnish  such  maps  at  the  ex- 
pense of  the  town,  if  they  can  be  procured;  if  not,  he  shall 
furnish  such  descriptions  of  the  lands  as  he  can  obtain,  with 
a  statement  of  the  quantity  in  each  subdivision,  if  the  same 
is  divided.  The  treasurer  of  every  county  shall,  on  receiving 
a  list  of  lands  to  be  sold  at  a  state  sale  transmit  to  the  comp- 
troller at  least  one  month  before  any  state  tax  sale,  a  certi- 
fied list  of  all  lands  bid  in  at  any  tax  sale,  in  the  name  of 
such  county,  or  transferred  to  such  county  upon  any  such 
sale,  or  to  which  the  county  may  have  acquired  a  tax  title, 
the  deed  for  which  has  not  been  recorded  in  the  office  of 
the  clerk  of  the  county,  which  may  then  be  liable  to  be  sold 
at  such  sale.  Every  county  clerk  shall,  on  receipt  of  a  list 
of  the  lands  therein  liable  to  be  sold  at  any  state  tax  sale, 
and  at  least  one  month  before  the  sale,  transmit  to  the  comp- 
troller a  certified  list  of  all  lands  the  conveyances  of  which 
are  on  record  in  his  office,  then  owned  by  such  county,  and 
liable  to  be  sold  at  such  sale. 


THE  TAX  LAW.  63 

§  122.  Sale,  how  conducted. —  On  the  day  mentioned  in  the 
notice  of  sale  the  comptroller  shall  commence  the  sale  of 
the  lands  specified  in  the  lists  annexed  to  the  notice,  and  con- 
tinue the  sale  from  day  to  day,  until  so  much  of  each  parcel 
shall  be  sold  as  will  be  sufficient  to  pay  all  the  taxes  thereon 
for  the  years  for  the  taxes  of  which  such  sale  shall  be  made, 
with  the  interest  and  charges  thereon.  In  case  no  pur- 
chaser bids  the  amount  due  on  any  lot  or  parcel,  the  comp- 
troller is  authorized  to  bid  in  such  lot  or  parcel  for  the  state. 
The  comptroller  may,  in  his  discretion,  decline  to  receive 
any  bid  on  any  parcel  of  land,  if  in  his  opinion,  it  is  made 
by  or  for  any  person  not  acting  in  good  faith,  and  any  such 
land  shall  be  sold  at  such  sale  the  same  as  if  such  bid  had 
not  been  made  thereon.  And  in  case  the  land  is  located  in  a 
county  outside  the  forest  preserve,  the  comptroller  may  sell 
and  assign  the  certificate  therefor  at  any  time  before  the 
expiration  of  the  period  for  redemption,  on  such  terms  as  to 
him  shall  seem  for  the  best  interests  of  the  state. 

§  123.  Purchases  by  the  comptroller  for  state  or  county.— 
The  comptroller  shall  bid  in  for  the  state  all  lands  of  the 
state,  and  also  all  lands  which  may  have  been  bid  in  by  or 
for  the  state  at  any  tax  sale  which  has  not  been  canceled,  or 
from  which  said  lands  have  not  been  duly  redeemed,  liable 
to  be  sold  at  any  tax  sale  held  by  him,  or  lands  that  are  then 
mortgaged  to  the  commissioners  for  loaning  certain  moneys 
of  the  United  States  and  for  each  county,  all  lands  belong- 
ing to  such  county  liable  to  be  sold  at  such  sale,  and  also  all 
lands  which  may  have  been  bid  in  by  or  for  such  county  at 
any  tax  sale  which  has  not  been  canceled  or  from  which 
said  lands  have  not  been  duly  redeemed;  and  to  reject  any 
and  all  bids  made  for  any  of  such  lands.  The  comptroller 
shall  make  certificates  of  sales  for  all  lands  so  bid  in  by  him, 
describing  the  lands  purchased  and  specifying  the  time  when 
a  deed  therefor  can  be  obtained.  Such  purchases  shall  be 
subject  to  the  same  right  of  redemption  as  purchases  by  indi- 
viduals; and  if  the  land  so  sold  shall  not  be  redeemed,  the 
comptroller's  deed  therefor  shall  have  the  same  effect  and 
become  absolute  in  the  same  time,  and  on  the  performance 
of  the  like  conditions,  as  in  the  case  of  sales  and  conveyances 
to  individuals.  The  comptroller  shall  charge  to  each  county, 


64  THE  TAX  LAW. 

on  the  books  of  his  office,  the  amount  for  which  it  may  be 
liable,  by  reason  of  any  purchase  made  in  accordance  with 
this  section,  and  such  amount  shall  become  due  on  the  last 
day  of  each  tax  sale,  and  shall  be  payable  in  the  same  man- 
ner as  the  state  tax  is  required  by  law  to  be  paid.  The  comp- 
troller shall,  as  soon  as  practicable,  after  each  tax  sale,  trans- 
mit the  certificates  of  sale  for  such  lands  to  the  treasurer  of 
each  of  such  counties,  on  receipt  of  which  the  county  treas- 
urer shall  enter  the  same,  in  their  proper  order,  in  a  book  to 
be  kept  by  him  for  such  purpose,  and  unless  otherwise  di- 
rected by  the  board  of  supervisors  of  his  county,  shall  have 
full  power  and  authority,  until  the  expiration  of  one  year 
from  the  last  day  of  such  sale,  to  sell  and  assign  any  of  such 
certificates  for  any  land  not  at  the  time  owned  by  his  county, 
on  payment  therefor,  into  the  county  treasury,  of  the  amount 
for  which  the  land  described  therein  was  sold  at  such  tax 
sale,  with  interest  thereon,  from  the  date  of  such  tax  sale  to 
the  date  of  such  sale  and  assignment  by  him.  AH  such  sales 
and  assignments  shall  be  duly  and  fully  entered  by  such 
county  treasurer  in  such  book,  which  book  shall  be  a  part  of 
the  records  of  the  county.  If  any  such  tax  sale  certificate 
shall  not  have  been  sold  or  assigned  by  the  respective  county 
treasurers  on  or  before  the  expiration  of  one  year  from  the 
last  day  of  such  sale,  each  of  such  county  treasurers  shall 
then  transmit  such  unsold  certificate  or  certificates  to  the 
comptroller,  who  shall  issue  to  the  board  of  supervisors  of 
each  county,  respectively,  a  deed  or  deeds  for  all  of  the 
lands  described  thereon  then  remaining  unredeemed,  or  the 
sale  for  which  has  not  been  canceled.  The  title  thus  ac- 
quired by  the  boards  of  supervisors  shall  be  held  by  them  in 
trust  for  their  respective  counties,  and  may  be  disposed  of 
by  them  at  such  times  and  on  such  terms  as  shall  be  deter- 
mined by  a  majority  of  such  board  at  any  regular  or  special 
meeting  thereof.  (Thus  amended  by  L.  1897,  cJiap.  233.) 

§  124.  Withdrawal  from  sale  of  lands  upon  which  the  state 
has  a  lien. —  No  land  against  which  the  people  of  the  state 
of  New  York  hold  a  bond  or  lien  for  any  part  of  the  pur- 
chase price  thereof  shall  be  sold,  but  all  such  land  shall  be 
withdrawn  from  such  sale.  The  amount  of  taxes,  interest 
and  expenses  for  which  it  may  be  liable  to  sale  as  shown  by 


THE  TAX  LAW.  «6 

the  comptroller's  book  of  sales  shall  be  charged  against  each 
lot,  piece  or  parcel  of  such  land  in  the  books  in  the  comp- 
troller's office  in  which  the  accounts  of  school  funds  and 
other  bonded  lands  are  kept,  and  the  state  treasurer  shall, 
on  the  receipt  of  a  statement  of  such  amounts,  charge  the 
same  against  the  respective  lots,  pieces  or  parcels  of  land,  on 
which  they  are  due,  on  the  duplicate  bond-books  kept  in  his 
office.  The  holder  of  the  certificate  or  contract  of  purchase 
of  any  such  land,  may  discharge  the  same  from  liability  in 
consequence  of  such  charge,  by  paying  to  the  state  treasurer 
at  any  time  within  two  years  after  the  last  day  of  sale  from 
which  such  lands  were  withdrawn,  the  amount  of  such 
charges  with  interest  thereon  at  the  rate  of  ten  per  centum 
annually.  If  such  payment  is  not  made,  the  comptroller 
shall,  at  the  expiration  of  such  two  years,  state  an  account 
of  the  indebtedness  against  each  lot,  piece  or  parcel  of  such 
land,  with  the  addition  of  thirty-seven  and  one-half  per 
centum  thereto,  and  the  amount  of  principal  and  interest 
due  on  the  bond  or  lien  thereon,  to  the  commissioners  of  the 
land  office,  who  may  thereupon,  if  default  shall  be  made  in 
the  payment  of  such  bond,  direct  the  comptroller  to  put  the 
same  in  suit,  or  shall  direct  the  state  engineer  and  surveyor 
to  again  sell  the  lands  against  which  such  indebtedness  re- 
mains. Upon  any  sale  thereof,  all  previous  payments  made 
on  account  of  such  land  shall  be  forfeited  to  the  people  of 
the  state.  No  conveyance  of  any  such  lands  shall  be  made 
to  any  purchaser,  until  all  such  taxes  and  expenses  charged 
against  the  same  on  such  bond-book  are  paid  into  the  state 
treasury. 

§  125.  Payment   of    "bids    and    certificate    of    purchase. — - 

Every  purchaser  at  any  sale  of  lands  by  the  comptroller 
under  this  article  shall  pay  the  amount  of  his  bid  to  the  state 
treasurer  within  forty-eight  hours  after  the  last  day  of  sale. 
Upon  the  payment  of  a  bid  to  the  comptroller  he  shall  give 
to  the  purchaser  a  written  certificate,  describing  the  lands 
purchased,  the  sum  paid  and  the  time  when  the  purchaser 
will  be  entitled  to  a  deed. 

§  126.  New  certificate  upon  setting  aside  sale. —  If  a  pur- 
chaser shall  not  have  paid  his  bid,  or  the  same  shall  not  have 

5 


66  THE  TAX  LAW. 

been  collected  from  him  at  the  expiration  of  one  month  from 
the  conclusion  of  the  sale,  at  which  the  bid  was  made,  the 
comptroller  may  set  aside  the  sale  of  land  for  which  the  bid 
was  made,  and  all  the  rights  of  the  purchaser  under  such 
bid  shall  thereby  be  extinguished,  and  the  comptroller  shall 
issue  a  certificate  of  such  sale  if  the  land  be  in  a  county 
including  a  portion  of  the  forest  preserve,  to  the  people  of 
the  state.  If  said  land  be  in  a  county  not  including  any 
portion  of  the  forest  preserve,  such  certificate  shall  be  issued 
to  any  person  who  will  pay  the  same  amount  as  would  be 
payable  by  the  original  purchaser  in  case  the  sale  had  not 
been  set  aside.  If  such  certificate  shall  not  have  been  sold 
within  three  months  from  the  date  of  such  sale  he  shall 
transfer  the  same  to  the  people  of  the  state.  If  the  transfer 
be  to  the  people,  the  whole  quantity  of  land  liable  to  sale  for 
the  purchase-money  mentioned  in  the  certificate  shall  be 
covered  by  such  purchase,  the  same  as  if  no  person  had 
offered  to  bid  therefor  at  the  sale.  The  change  of-  purchaser 
made  pursuant  to  this  section  and  the  time  when  made  shall 
be  noted  in  the  sales  book,  and  the  certificates  issued  shall 
confer  the  same  right  upon  the  state  as  it  would  have  ac- 
quired had  the  land  been  bid  in  for  it  at  the  sale. 

§  127.  Redemption  of  lands —  The  owner  or  occupant  of 
any  lands  sold  by  the  comptroller  for  taxes,  or  any  other 
person  having  an  interest  therein  at  the  time  of  the  sale, 
may  redeem  the  same  from  such  sale  at  any  time  within  one 
year  after  the  last  day  of  the  sale,  by  paying  to  the  state 
treasurer,  on  the  certificate  of  the  comptroller  for  the  use 
of  the  purchaser,  his  heirs  or  assigns,  the  sum  mentioned  in 
the  certificate  of  sale  therefor,  with  interest  thereon  at  the 
rate  of  ten  per  centum  per  annum,  after  the  date  of  such 
certificate  of  sale.  The  purchaser  of  any  wild,  vacant  or 
unoccupied  land  at  any  such  sale,  or  his  assigns,  shall  not 
enter  upon  or  exercise  acts  of  ownership  on  such  land,  until 
the  expiration  of  one  year  allowed  for  the  redemption  thereof 
from  such  sale.  A  person  having  an  interest  in  an  undi- 
vided part  of  any  tract,  lot  or  piece  of  land  so  sold,  or  in  an 
undivided  share  in  any  tract  or  lot  of  land  out  of  which  an 
undivided  part  shall  have  been  sold,  may  redeem  such  undi- 
vided part  or  share  by  paying  such  proportion  of  the  pur- 


THE  TAX  LAW.  6T 

chase-money  and  interest  as  shall  he  in  proportion  to  the 
part  or  share  of  the  lands  sold  which  he  shall  claim.  Every 
person  having  an  interest  in  a  specific  part  of  any  tract,  lot 
or  piece  of  land,  so  sold,  or  lot  of  land  out  of  which  an  un- 
divided part  may  have  been  sold  for  taxes  charged  on  the 
whole  tract  or  lot,  may  redeem  such  specific  part  by  paying 
such  proportion  of  the  purchase  money  and  interest  as  his 
quantity  of  acres  shall  bear  to  the  whole  quantity  of  acres 
sold,  or  to  the  whole  quantity  taxed.  Any  person  claiming  a 
specific  part  of  any  tract  or  lot  of  land,  out  of  which  a  specific 
part  belonging  to  some  other  person  shall  have  been  sold  for 
taxes  charged  on  the  whole  tract  or  lot,  may  exonerate  him- 
self from  all  liability  to  contribute  to  the  owner  of  the  part 
sold,  by  paying  to  the  comptroller  at  any  time  before  the 
expiration  of  the  time  allowed  for  the  redemption  thereof, 
such  proportion  of  the  purchase-money  and  interest  as  his 
quantity  of  acres  shall  bear  to  the  whole  quantity  taxed,  and 
such  payment  shall  operate  as  a  redemption  of  his  propor- 
tionate part  of  the  lands  sold  according  to  the  amount  paid. 
Upon  a  partial  redemption  under  this  section,  the  quantity 
sold  shall  be  reduced  in  proportion  to  the  amount  paid  on 
such  partial  redemption  and  the  comptroller  shall  convey 
accordingly. 

§  128.  Redemption  of  lands  conjointly  assessed — If  the 
lands  of  one  person  shall  be  sold  for  taxes  assessed  con- 
jointly on  his  lands  and  lands  of  another,  and  the  latter  shall 
not  pay  his  due  proportion  required  for  the  redemption  of 
his  lands,  the  former  may  redeem  the  same  on  paying  to  the 
comptroller  the  purchase-money  and  interest,  and  he  ah  all 
be  entitled  to  recover,  after  the  expiration  of  the  time 
allowed  for  redemption,  from  the  other  person  whose  lands 
were  assessed  with  his,  a  just  proportion  of  the  redemption 
moneys  paid,  with  interest.  If  the  lands  of  one  person  so 
sold  for  taxes  assessed  conjointly  on  his  lands  and  the  lands 
of  another  person,  shall  not  be  redeemed,  and  they  shall  be 
conveyed  by  the  comptroller,  the  former  may  recover  from 
the  latter  the  same  proportion  of  the  value  of  the  lands  sold 
and  conveyed,  that  the  latter  ought  to  have  paid  of  the  tax 
and  interest  and  charges  for  which  the  lands  shall  have  been 
sold.  Every  judgment  obtained  under  this  section  shall  have 


68  THE  TAX  LAW. 

priority  as  against  the  lands  of  the  defendant  therein,  on 
which  the  tax  was  assessed,  and  for  which  such  propor- 
tionate part  ought  to  have  been  paid,  over  all  mortgages  and 
judgments,  if  at  the  time  of  docketing  such  judgment  the 
plaintiff  cause  an  entry  to  be  made  by  the  clerk  in  the  docket 
thereof,  specifying  that  such  judgment  has  priority  as  a  lien 
on  certain  lands,  over  mortgages  and  other  judgments,  pur- 
suant to  the  tax  law,  which  entry  shall  be  a  part  of  such 
docket.  In  all  actions  under  this  section,  the  certificate  of 
the  state  treasurer,  countersigned  by  the  comptroller,  stating 
the  facts  in  relation  to  such  redemption,  or  sale  and  con- 
veyance, shall  be  presumptive  evidence  of  all  facts  therein 
stated. 

§  129.  Prohibition  of  the  despoliation  of  lands  sold. — 
Neither  the  owner,  occupant  nor  any  other  person  shall  have 
the  right  to  despoil  any  lands  sold  for  taxes  by  the  comptrol- 
ler of  their  value,  by  the  removal  of  buildings  or  "by  cutting, 
removing  or  destroying  timber,  or  other  valuable  products, 
growing,  existing  or  being  thereon  at  the  time  of  sale.  The 
purchaser  of  any  wild,  vacant,  or  unoccupied  land  at  the 
sale  thereof  by  the  comptroller,  whose  bid  therefor  shall  havo 
been  fully  paid,  or  his  assigns  or  representatives  may  at  any 
time  before  obtaining  his  deed,  cause  to  be  served  a  notice  on 
any  person  despoiling  such  lands  or  interested  in  such  de- 
spoliation, either  personally  or  by  leaving  the  same  at  the 
residence  of  such  person,  or  with  any  member  of  his  family 
of  suitable  age  and  discretion.  The  notice  shall  describe 
such  lands,  substantially  as  sold,  shall  state  that  it  was  sold 
for  taxes  by  the  comptroller,  and  that  an  action  to  recover  the 
value  of  the  buildings,  timber  or  other  products  destroyed 
or  removed  therefrom,  after  the  date  of  sale  thereof,  will  be 
instituted  against  all  persons  concerned  in  such  despoliation. 
If  such  lands  shall  not  be  redeemed,  every  person  engaged 
or  interested  in  making  such  despoliation,  upon  whom  ser- 
vice of  the  notice  shall  have  been  made,  shall  bs  liable  to 
pay  to  the  holder  of  the  tax  sale  certificate  therefor  the  full 
value  of  any  building  so  destroyed  or  removed  thevof/om, 
and  of  all  the  timber,  bark,  or  other  products  so  <A~A  or  de- 
stroyed or  removed  therefrom,  from  the  date  of  t'j.t<  sale  of 


THE  TAX  LAW.  69 

such  land  to  the  termination  of  such  action,  and  may  be  re- 
strained by  injunction  from  committing  any  waste  thereon. 

§  130.  Notice  of  unredeemed  lands. —  The  comptroller  shall, 
at  least  three  months  before  the  expiration  of  the  one  year 
allowed  for  the  redemption  of  lands  sold  by  him  for  taxes, 
cause  a  notice  to  be  published  once  in  each  week  for  at  least 
six  weeks  successively,  the  last  publication  to  be  at  least  six 
weeks  before  expiration  of  the  year,  in  the  newspapers  desig- 
nated by  the  board  of  supervisors  of  the  county  in  which  such 
lands  are  situated,  to  publish  the  session  laws,  containing  a 
list  of  the  lands  in  such  county  sold  for  taxes  and  unredeemed, 
specifying  particularly  every  parcel  unredeemed,  and  the 
amount  necessary  to  redeem  the  same,  calculated  to  the  last 
day  in  which  such  redemption  can  be  made,  and  stating  that, 
unless  such  lands  are  redeemed  by  a  certain  day,  they  will  be 
conveyed  to  the  purchaser.  If  more  than  two  newspapers  in 
any  county  are  designated  in  pursuance  of  law  to  publish  the 
session  laws,  such  publication  shall  be  made  in  two  of  the  news- 
papers so  designated  to  be  selected  by  the  comptroller,  represent- 
ing different  political  parties.  If  no  newspaper  shall  have  been 
so  designated  in  any  county  such  publication  shall  be  made  in 
two  newspapers  in  the  county,  to  be  selected  by  the  comptroller, 
and  if  there  shall  not  be  two  newspapers  published  in  the  county, 
then  in  two  newspapers  which  the  comptroller  shall  determine 
to  be  most  generally  circulated  in  such  county,  representing 
each  of  the  political  parties  casting  the  largest  number  of  votes 
therein  at  the  general  election  next  preceding  such  designation. 
The  expense  of  such  publication  shall  be  audited  and  paid  by 
the  board  of  supervisors  of  the  county  in  which  such  lands  are 
situated. 

§  131.  Comptroller's  deed  and  application  therefor. —  The 
owner  of  any  certificate  of  sale  of  land  sold  by  the  comptroller 
for  taxes  after  January  first,  nineteen  hundred  and  two,  and 
not  redeemed,  (except  the  state,  and  the  purchaser  at  the  tax 
sale  who  is  the  owner  with  a  duly  recorded  title  of  the  land 
sold),  must  make  application  in  writing  to  the  comptroller  for 
a  conveyance  of  the  land  described  in  the  certificate  within  four 
years  after  the  expiration  of  one  year  from  the  last  day  of  the 
sale.  The  owner  of  any  certificate  of  sale  of  land  sold  by  the 
comptroller  for  taxes  prior  to  January  first,  nineteen  hundred 
and  two,  (except  the  state,  and  the  purchaser  at  the  tax  sale 
who  is  the  owner  with  a  duly  recorded  title  of  the  land  sold"), 
must  make  application  in  writing  to  the  comptroller  for  a  con- 
veyance of  such  land  within  one  year  after  Mav  first,  nineteen 
hundred  and  two,  provided  the  purchaser  at  the  tax  sale,  his 


70  THE  TAX  LAW. 

heirs,  devisees,  executors  or  testamentary  trustees  have  not  con- 
veyed the  land  therein  described  and  such  conveyance  been  duly 
recorded,  or  mortgaged  the  same  and  the  mortgage  has  been 
foreclosed  and  the  land  sold  and  conveyed  thereunder  or  said 
land  has  not  been  redeemed  from  the  tax  sale.  If  application 
for  a  conveyance  is  not  made  as  herein  provided  the  certificate 
shall  become  void,  and  no  claim  can  be  maintained  under  the 
purchase.  After  the  expiration  of  one  year  from  the  time  of 
sale  the  comptroller  shall,  after  application  in  writing  therefor 
and  upon  the  surrender  of  the  certificate  or  upon  proof  to  his 
satisfaction  that  the  certificate  has  been  lost  or  is  wrongfully 
detained,  execute  in  the  name  of  the  people  of  the  state  to  the 
owner  of  such  certificate  a  conveyance  of  any  lands  so  sold  by 
him  for  taxes  and  not  redeemed,  under  his  hand  arid  official 
seal,  and  witnessed  by  the  deputy  comptroller,  or  state  treas- 
urer, which  shall  vest  in  the  grantee  an  absolute  estate  in  fee 
simple,  subject  to  all  claims  which  the  state  may  have  thereon 
for  taxes  or  other  liens  or  encumbrances,  and  which  shall  be 
presumptive  evidence  that  the  sale  and  all  proceedings  prior 
thereto,  from  and  including  the  assessment  of  lands  sold,  and 
that  all  notices  required  by  law  to  be  given  previous  to  the  ex- 
piration of  the  time  allowed  by  law  for  the  redemption  thereof, 
were  regular  and  in  accordance  with  all  the  provisions  of  law 
relating  thereto.  After  two  years  from  the  date  of  such  con- 
veyance such  presumption  shall  be  conclusive.  Every  certificate 
of  conveyance  executed  by  the  comptroller  under  this  act  may 
be  recorded  in  the  same  manner  and  with  like  effect  as  a  con- 
veyance of  real  estate  properly  acknowledged  or  proven.  (Thus 
amended  by  L.  1898,  chap.  339,  and  L.  1902,  chap.  344,  in  effect 
April  23,  1902.) 

§  132.  Effect  of  former  deeds. —  Every  such  conveyance  here- 
tofore executed  by  the  comptroller,  county  treasurer  or  county 
judge  and  all  conveyances  of  the  same  lands  by  his  grantee  or 
grantees  therein  named,  which  have  for  two  years  been  recorded 
in  the  office  of  the  clerk  of  the  county  in  which  the  lands  con- 
veyed thereby  are  located,  and  all  outstanding  certificates  of  a 
tax  sale  heretofore  held  by  the  comptroller,  that  shall  have 
remained  in  force  for  two  years  after  the  last  ^ay  allowed  by 
law  for  redemption  from  such  sale,  shall  be  condi-r^ve  evidence 
that  the  sale  and  proceedings  prior  thereto,  from  and  including 
the  assessment  of  the  lands,  and  all  notices  required  by  law  to 
be  given  previous  to  the  expiration  of  the  time  allowed  for  re- 
demption, were  regular  and  were  regularlv  given,  published  and 
served  according  to  the  provisions  of  all  laws  directing  and 
requiring  the  same  or  in  any  manner  relating  thereto,  but  all 
such  conveyances  and  certificates,  and  the  taxes  and  tax  sales  on 
which  they  are  based,  shall  be  subject  to  cancellation,  by  reason 


THE  TAX  LAW.  71 

of  the  payment  of  such  taxes,  or  by  reason  of  the  levying  of 
such  taxes  by  a  town  or  ward  having  no  legal  right  to  assess 
the  land  on  which  they  are  laid,  or  by  reason  of  any  defect  in 
the  proceedings  affecting  the  jurisdiction  upon  constitutional 
grounds,  on  direct  application  to  the  comptroller,  or  in  an 
action  brought  before  a  competent  court  therefor;  provided, 
however,  that  such  application  shall  be  made,  or  such  action 
brought,  in  the  case  of  all  sales  held  prior  to  the  year  eighteen 
hundred  and  ninety-five,  within  one  year  from  the  passage  of 
this  act;  and  in  the  case  of  the  sale  of  eighteen  hundred  and 
ninety-five  and  of  all  sales  hereafter  held,  that  such  application 
shall  be  made,  or  such  action  brought,  within  five  years  from 
the  expiration  of  the  period  allowed  by  law  for  the  redemption 
of  lands  sold  at  the  particular  sale  sought  to  be  canceled. 

§  133.  Possession  of  lands  by  the  state. —  The  comptroller 
may  advertise  once  a  week,  for  at  least  three  weeks  successively, 
a  list  of  the  wild,  vacant  and  forest  lands  to  which  the  state 
holds  title,  from  a,  tax  sale  or  otherwise,  in  one  or  more  news- 
papers to  be  selected  by  him,  published  in  the  county  in  which 
the  lands  are  situated,  and  from  and  after  the  expiration  of 
such  time,  all  such  wild,  vacant  and  forest  lands  are  hereby 
declared  to  be  and  shall  be  deemed  to  be  in  the  actual  possession 
of  the  comptroller,  and  such  possession  shall  be  deemed  to  con- 
tinue until  he  has  been  dispossessed  by  the  judgment  of  a 
court  of  competent  jurisdiction. 

§  134.  Notice  to  occupants. —  If  any  lot  or  separate  tract  of 
land  sold  for  taxes  by  the  comptroller  and  conveyed,  or  any 
part  thereof  shall,  at  the  time  of  the  expiration  of  one  year 
given  for  the  redemption  thereof,  be  in  the  actual  occupancy 
of  any  person,  the  grantee  to  whom  the  same  shall  have  been 
conveyed,  or  the  person  claiming  under  him,  shall  within  one 
year  from  the  expiration  of  the  time  to  redeem,  serve  a  written 
notice  on  the  person  occupying  such  land,  either  personally  or 
by  leaving  the  same  at  the  dwellinghouse  of  the  occupant,  with 
a  person  of  suitable  age  and  discretion  belonging  to  his  family. 
If  the  occupant  does  not  reside  in  the  tax  district  in  which 
the  real  estate  is  situated  the  notice  may  be  served  by  mail  in 
the  manner  required  by  law  in  respect  to  notices  of  non-accept- 
ance or  non-payment  of  notes  or  bills  of  exchange.  Service  on 
one  joint  tenant  or  tenant  in  common  shall  be  service  on  all 
the  joint  tenants  or  tenants  in  common.  Service  on  a  tenant 
shall  be  service  on  his  landlord.  The  term  "  occupant "  shall 
be  construed  to  mean  a  person  who  has  lawfully  entered  upon 
the  land  so  occupied,  and  is  in  possession  of  the  same  to  the 
exclusion  of  every  other  person.  And  the  term  "  occupancy  " 
shall  mean  the  actual  lawful  and  exclusive  use  and  possession 


72  THE  TAX  LAW. 

of  such  lands  and  premises  by  such  an  occupant.  The  notice 
shall  state  in  substance,  the  sale  and  conveyance  of  the  land, 
the  person  to  whom  made,  the  amount  of  consideration  money 
mentioned  in  the  conveyance,  with  the  addition  of  thirty-seven 
and  one-half  per  centum  thereon  and  of  the  sum  paid  for  the 
deed,  and  that  unless  such  consideration  money  and  percentage 
with  the  sum  paid  for  the  deed,  shall  be  paid  into  the  state 
treasury  for  the  benefit  of  the  grantee,  within  six  months  after 
the  time  of  filing  in  the  comptroller's  office  of  the  evidence  of 
the  service  of  such  notice,  the  conveyance  shall  become  absolute 
and  the  occupant  and  all  others  interested  in  the  land  be  forever 
barred  from  all  right  or  title  thereto.  ISTo  conveyance  made  in 
pursuance  of  this  section  shall  be  recorded  until  the  expiration 
of  the  time  mentioned  in  such  notice,  and  the  evidence  of  the 
service  of  such  notice  shall  be  recorded  with  such  conveyance. 
(Thus  amended  by  L.  1902,  chap.  171,  in  effect  April  4,  1902.) 

§  135.  Certificate  of  nonredemption  and  completion  of  title. 
—  Within  one  month  after  the  service  of  any  such  notice, 
the  grantee  or  person  claiming  under  him,  in  order  to  com- 
plete his  title  to  the  land  conveyed  shall  file  with  the  comp- 
troller a  copy  of  the  notice  served,  with  the  affidavit  of  a 
person,  certified  as  credible  by  the  officer  before  whom  the 
affidavit  is  taken,  that  the  notice  was  duly  served  specifying 
the  mode  of  service.  If  the  comptroller  shall  be  satisfied 
that  the  proper  notice  has  been  duly  served,  and  if  the  mon- 
eys required  for  the  redemption  of  such  land  shall  not  have 
been  paid  within  the  six  months,  he  shall  under  his  hand  and 
official  seal,  certify  such  facts,  and  the  conveyance  before 
made  shall  thereupon  become  absolute  and  the  occupant  and 
all  others  interested  in  such  lands  shall  be  forever  barred 
from  all  right  and  title  thereto. 

§  136.  Redemption  by  occupant  and  certificate  of  redemp- 
tion.—  The  occupant,  or  any  other  person  having  am  inter- 
est therein  at  the  time  of  the  sale,  may  at  any  time  within 
the  six  months  mentioned  in  such  notice  redeem  such  land 
by  paying  into  the  treasury  the  consideration  money  with 
the  addition  of  thirty-seven  and  one-half  per  centum  thereon 
and  the  amount  paid  for  the  deed.  Every  such  redemption 
shall  be  as  effectual  as  if  made  before  the  expiration  of  the 
year  allowed  for  the  redemption  of  the  land  sold.  In  all 
cases  of  application  for  redemptions  on  the  ground  of  occu- 


THE  TAX  LAW.  73 

pancy,  in  which  a  part  only  of  the  separate  lot  or  tract  of 
land  thus  sold  is  occupied,  the  applicant  shall  be  allowed  to 
redeem  only  that  particular  part  of  the  lot  or  tract  sold  which 
shall  be  actually  occupied,  used  and  possessed  as  herein  de- 
fined, at  the  time  of  the  expiration  of  the  one  year  given  for 
the  redemption  thereof;  provided,  that  the  notice  required 
to  be  served  upon  such  occupant  by  the  purchaser  at  a  tax 
sale,  his  grantee  or  person  claiming  under  him,  shall,  in  ad- 
dition to  other  facts  now  required  to  be  stated  therein,  con- 
tain a  specific  description  of  the  particular  part  of  the  lot  or 
tract  sold  which  may  be  redeemed  and  the  amount  necessary 
to  redeem  the  same.  Such  'partial  redemption  may  be  al- 
lowed upon  filing  in  the  office  of  the  comptroller,  satisfactory 
evidence  of  such  occupancy,  and  of  the  extent  thereof,  and 
by  paying  such  proportion  of  the  consideration  money  men- 
tioned in  the  conveyance,  with  the  addition  of  thirty-seven 
and  one-half  per  centum  of  such  amount  and  the  further  ad- 
dition of  the  sum  paid  for  the  deeds,  as  the  value  of  the  lands 
and  the  premises  occupied  and  sought  to  be  redeemed  bears 
to  the  value  of  the  whole  quantity  of  land  sold;  such  value 
to  be  determined  and  fixed  by  the  comptroller. 

§  137.  Bedemption  by  occupant  before  notice  and  effect  of 
failure  to  redeem. —  The  occupant  of  any  lot  or  separate  tract 
of  land  sold  for  taxes  by  the  comptroller,  or  any  part  thereof, 
or  any  person  who  had  the  title  thereto  or  an  interest  therein 
at  time  of  the  sale  may,  at  any  time  before  the  service  of  such 
notice  by  the  purchaser  or  the  person  claiming  under  him 
and  within  two  years  from  the  expiration  of  the  year  al- 
lowed by  law  for  the  redemption  thereof  and  not  thereafter, 
redeem  any  land  so  occupied,  by  filing  in  the  office  of  the 
comptroller,  satisfactory  evidence  of  the  occupancy  required, 
and  by  paying  to  him  the  consideration  money  for  which  the 
lands  to  be  redeemed  were  sold  and  thirty-seven  and  one- 
half  per  centum  thereon,  with  the  sum  paid  for  the  deed, 
if  any.  On  application  for  such  redemption  the  comptrol- 
ler may  appoint  a  commissioner  to  take  all  material  evi- 
dence offered  with  reference  to  the  occupation  of  the  lands 
in  question.  The  hearing  shall  be  had  in  the  county  where 
the  land  is  situated,  on  at  least  ten  days'  notice  to  the  party 


74  THE  TAX  LAW. 

applying  for  the  redemption.  The  commissioner  shall  have 
the  same  power  to  issue  subpoenas  and  proceed  with  the  ex- 
amination of  witnesses  under  oath,  as  is  had  hy  a  referee  in 
a  court  of  record.  His  compensation  shall  not  exceed  six 
dollars  per  day  and  shall  be  taxed  by  the  comptroller  and 
paid  upon  his  warrant  by  the  treasurer.  He  shall  report 
the  testimony  taken  by  him  with  his  opinion  thereon,  to  the 
comptroller  for  his  decision.  Such  occupant  or  other  per- 
son shall  also  pay  to  the  comptroller  such  amounts  as  may 
have  been  paid  to  the  state  for  subsequent  taxes  thereon,  or 
for  redemption  from  subsequent  tax  sales  thereof,  and  if 
such  lot  has  been  legally  exempt  from  taxation  for  one  or 
more  years  subsequent  to  the  sale,  a  sum  equal  to  the  gross 
amount  of  taxes  and  interest  which  would  have  been  due 
thereon,  if  it  had  been  taxed  during  each  of  the  years  it  was 
so  exempt,  on  its  assessed  valuation,  and  at  the  rate  per 
centum  of  taxation  thereon  for  the  year  when  last  returned 
to  the  comptroller's  office.  In  case  of  failure  to  redeem 
within  the  time  herein  specified,  the  sale  and  conveyance 
thereof  shall  become  absolute  and  the  occupant  and  all  other 
persons  barred  forever. 

§  138.  Lien  of  mortgage  not  affected  by  tax  sale. —  The 
lien  of  a  mortgage,  duly  recorded  or  registered  at  the  time 
of  the  sale  of  any  lands  for  nonpayment  of  any  tax  or  as- 
sessment thereon,  shall  not  be  destroyed,  or  in  any  manner 
affected,  except  as  provided  in  this  section.  The  purchaser 
at  any  such  sale  shall  give  to  the  mortgagee  a  written  notice 
of  such  sale  within  one  year  from  the  expiration  of  the  ti™« 
to  redeem,,  and  in  case  of  tax  sales  heretofore  held,  where 
the  time  of  redemption  by  mortgagees  has  not  expired,  within 
three  years  from  the  passage  of  this  act,  requiring  him  to 
pay  the  amount  of  purchase-money,  with  interest  at  the  rate 
allowed  by  law  in  case  of  redemption  by  occupants,  within 
six  months  after  giving  the  notice.  Such  notice  may  be 
given  either  personally  or  in  the  manner  required  by  law  in 
respect  to  notices  of  nonacceptance  or  nonpayment  of  notes 
or  bills  of  exchange,  and  a  notarial  certificate  thereof  shall 
be  presumptive  evidence  of  the  fact  that  may  be  recorded  in 
the  county  in  which  the  mortgage  was  recorded,  in  the  same 


THE  TAX  LAW.  75 

manner  and  with  the  same  effect  as  a  deed  or  other  evidence 
of  title  of  real  property.  (Thus  amended  by  L.  1897,  chap. 
373.) 

§  139.  Redemption  by  mortgagee  before  notice. —  The 
holder  of  any  mortgage  which  is  duly  recorded  at  the  time 
of  the  sale,  may,  at  any  time  after  the  sale  of  all  or  any  part 
of  the  mortgaged  premises  for  unpaid  taxes,  and  before  the 
expiration  of  six  months  from  the  giving  of  the  notice  re- 
quired by  this  article  to  be  given  to  a  mortgagee,  redeem  the 
premises  so  sold,  or  any  part  thereof  from  such  sale.  The 
redemption  shall  be  made  by  filing  with  the  comptroller  a 
written  description  of  his  mortgage,  and  by  paying  to  the 
state  treasurer,  upon  the  certificate  of  the  comptroller,  for 
the  use  of  the  purchaser,  his  heirs  or  assigns,  the  sum  men- 
tioned in  his  certificate,  with  interest  at  the  rate  allowed  by 
law  in  case  of  redemption  by  occupants  from  the  date  of 
such  certificate.  The  holder  of  such  mortgage  shall  have  a 
lien  upon  the  premises  redeemed  for  the  amount  so  paid  with 
interest  from  the  time  of  payment,  in  like  manner  as  if  it 
had  been  included  in  the  mortgage.  Provided,  however, 
that  the  notice  required  to  be  given  under  this  and  the  last 
preceding  section  shall  be  directed  only  to  such  persons  as 
shall  within  two  years  from  the  time  of  such  sale,  and  in  case 
of  all  sales  held  before  April  twenty-fourth,  eighteen  hun- 
dred and  ninety-seven,  the  date  of  the  taking  effect  of  chap- 
ter three  hundred  and  seventy-three  of  the  laws  of  eighteen 
hundred  and  ninety-seven,  where  the  time  allowed  by  law 
for  redemption  by  mortgagees  had  not  then  expired,  within 
two  years  from  April  twenty-fourth,  eighteen  hundred  and 
ninety-seven,  file  in  the  office  of  the  comptroller  a  notice,  stat- 
ing the  names  of  the  mortgagor  and  mortgagee,  the  date  of 
the  mortgage,  and  the  amount  claimed  to  be  due  thereon,  and 
the  county,  town  and  tract  in  which  the  mortgaged  premises 
are  situated,  with  the  number  of  the  lot  on  which  said  mort- 
gage is  claimed  to  be  a  lien,  with  the  name  of  the  person  or 
persons  claiming  notice,  their  residence,  and  the  post  office  to 
which  such  notice  shall  be  addressed.  A  purchaser  of  mort- 
gaged premises  at  a  sale  thereof  under  and  in  pursuance  of  a 
judgment  or  decree  of  foreclosure  of  a  mortgage  thereof,  held 
within  Two  years  after  April  twenty-fourth,  eighteen  him- 


76  THE  TAX  LAW. 

dred  and  ninety-seven,  shall  be  deemed  in  all  actions  and 
proceedings  relating  to  the  redemption  of  said  premises  from 
any  previous  tax  sales  thereof,  to  have  been  the  holder  of 
said  mortgage  and  to  have  been  entitled  to  take  the  like  pro- 
ceedings for  the  redemption  of  said  premises  from  such  tax 
sales  and  with  the  like  effect,  as  the  holder  of  such  mortgage 
would  have  been  entitled  to  if  there  had  been  no  foreclosure 
of  such  mortgage.  (Thus  amended  by  L.  1897,  chap.  373r 
and  L.  1901,  chap.  605,  taking  effect  April  27,  1901.) 

§  140.  Cancellation  of  sales. —  The  comptroller  shall  not 
convey  any  lands  sold  for  taxes  if  he  shall  discover  before 
the  conveyance,  that  the  sale  was  for  any  cause  invalid  or 
ineffectual  to  give  title  to  the  lands  sold;  but  he  shall  cancel 
the  sale  and  forthwith  cause  the  purchase-money  and  in- 
terest thereon  to  be  refunded  out  of  the  state  treasury  to 
the  purchaser,  his  representatives  or  assigns.  If  the  error 
originated  with  the  county  or  town  officers  the  sum  paid  shall 
be  a  charge  against  the  county  from  which  the  tax  was  re- 
turned, and  the  board  of  supervisors  thereof  shall  cause  the 
same  to  be  assessed,  levied  and  collected  and  paid  into  the 
state  treasury.  If  he  shall  not  discover  that  the  sale  was 
invalid  until  after  a  conveyance  of  the  lands  sold  shall  have 
been  executed  he  shall,  on  application  of  any  person  having 
an  interest  therein  at  the  time  of  the  sale,  on  receiving  proof 
thereof,  cancel  the  sale,  refund  out  of  the  state  treasury  to 
the  purchaser,  his  representatives  or  assigns,  the  purchase- 
money  and  interest  thereon,  and  recharge  the  county  from 
which  the  tax  was  returned,  with  the  amount  of  purchase- 
money  and  interest  from  the  time  of  sale,  which  the  county 
shall  cause  to  be  levied  and  paid  into  the  state  treasury.  On 
any  such  application  the  comptroller  may  appoint  a  commis- 
sioner with  like  powers  and  duties  as  in  case  of  an  application 
for  redemption;  provided,  however,  that  in  any  county  which 
does  not  include  a  portion  of  the  forest  preserve,  such  ap- 
plication for  cancellation  may  also  be  made  by  the  owner  of 
the  lands  at  the  time  of  the  tax  sale. 

§  141.  Setting  aside  cancellation  of  sale. —  The  comp- 
troller is  hereby  authorized  and  empowered  and  shall,  upon 
the  application  of  any  one  whomsoever  aggrieved  thereby,. 


THE  TAX  LAW.  77 

set  aside  any  cancellation  of  sale  made  by  him,  or  by  any  of 
his  predecessors  in  office,  in  either  of  the  following  cases: 

First.  When  such  cancellation  was  procured  by  fraud  or 
misrepresentation. 

Second.  When  it  was  procured  by  the  suppression  of  any 
material  fact  bearing  on  the  case. 

Third.  When  it  was  made  under  a  mistake  of  fact. 

Fourth.  When  such  cancellation  was  made  upon  an  ap- 
plication which  the  comptroller,  or  any  of  his  predecessors 
in  office,  had  no  jurisdiction  or  legal  right  to  entertain  at 
the  time  of  such  cancellation. 

Eight  days  written  notice  of  an  application  made  under 
and  pursuant  to  this  section  shall  be  served  upon  the  person 
upon  whose  application  such  sale  was  canceled,  or  his  heirs 
or  grantees,  the  county  treasurer  of  the  county  or  counties 
in  which  the  lands  affected  by  such  application  are  situate 
and  upon  the  attorney-general  of  the  state  of  New  York; 
in  case  any  of  the  parties  to  be  served  are  not  residents  of 
the  state  of  ISTew  York,  or  can  not  after  reasonable  diligence 
be  found  within  the  state  of  New  York,  such  notice  may  be 
served  by  the  publication  thereof  in  a  newspaper  published 
in  the  county  or  counties  where  the  lands  affected  by  such 
application  are  situate,  and  also  in  the  newspaper  printed  at 
Albany,  in  which  legal  notices  are  required  to  be  published, 
once  in  each  week  for  three  weeks  immediately  preceding 
the  day  upon  which  such  application  is  to  be  made,  and  also 
by  mailing  a  copy  of  said  notice  to  each  of  said  parties  at 
their  last  known  place  of  residence ;  and  on  or  before  the  day 
of  the  first  publication  all  papers  upon  which  such  applica- 
tion is  to  be  made  shall  be  filed  in  the  office  of  the  comp- 
troller. The  comptroller  shall  in  all  cases  specify  the 
grounds  upon  which  such  cancellation  is  set  aside,  and  every 
such  cancellation  set  aside  by  the  comptroller  shall  in  every 
and  all  respects  have  the  same  force  and  effect  as  though  no 
cancellation  thereof  had  ever  been  made.  (Thus  amended 
by  L.  1897,  chap.  392.) 

§  142.  Expenses  of  sale —  The  expenses  attending  any  sale 
for  taxes  under  this  article,  including  the  expenses  of  print- 
ing and  publishing  lists  and  notices  and  transmitting  copies 
thereof,  and  of  all  other  things  required  to  be  done  before 


T8  THE  TAX  LAW. 

the  sale  shall  be  had,  shall  be  a  charge  on  the  lands  liable 
to  be  sold:  and  the  comptroller  shall  add  to  the  taxes,  interest 
and  other  charges  on  each  parcel  of  land  liable  to  be  sold, 
an  equal  proportionate  part  of  such  expenses  to  be  estimated 
by  him. 

§  143.  Payment  of  moneys  into  state  treasury. — The  mon- 
eys received  up'on  any  sale  and  interest  under  this  article, 
and  for  the  expenses  of  the  sale  shall  be  paid  into  the  state 
treasury  and  the  accounts  of  all  persons  entitled  to  any  por- 
tion of  the  moneys  so  received  for  such  expenses,  shall  be 
audited  by  the  comptroller  and  paid  out  of  the  state  treasury. 


THE  TAX  LAW.  T9 


ARTICLE  VII. 

SALES   BY   COUNTY   TREASURERS   FOR   UNPAID   TAXES   AND 
REDEMPTION  OF  LANDS. 

Section  150.     When  lands  to  be  sold  for  unpaid  taxes. 

151.  Advertisement  and  sale. 

152.  Redemotion. 

152a.  Itedemption  of  real  property  stricken  from  tax  roll. 

1C3.  Conveyance  by  county  treasurer. 

154.  Conveyance  and  its  effect. 

155.  T,Yhen  purcnase  money  to  be  refunded. 

156.  Lands  which  the  state  owns  or  upon  which  it  has  a  lien. 

157.  Provisions  relative  to  comptroller  to  apply  to  treasurer. 

158.  Article  not  to  relate  to  certain  cities. 

159.  Expenses  of  publishing  notice  to  redeem. 

§  150.  When  lands  to  be  sold  for  unpaid  taxes. —  Whenever 
any  tax  charged  on  real  estate  in  the  counties  of  Saint  Lawrence, 
Lewis,  Clinton  and  Oneida,  or  in  a  county  not  including  a 
portion  of  the  forest  preserve,  is  returned,  to  th  ecounty  treas- 
urer, he  shall  not  return  the%  same  to  the  comptroller,  but  if 
such  tax,  with  interest  thereon  at  the  rate  of  ten  per  centum 
per  annum  computed  from  the  first  day  of  February  after  the 
same  is  levied,  shall  remain  unpaid  for  six  months  from  that 
date,  such  county  treasurer  shall  advertise  and  sell  such  real 
estate,  as  herein  provided,  for  the  payment  of  such  tax,  and 
interest  and  the  expenses  of  such  sale.  The  expense  of  publica- 
tion of  the  notice  of  sale  and  the  list  of  lands  to  be  sold  and  the 
expense  of  conducting  the  sale,  and  the  expense  of  publication  of 
the  notice  of  unredeemed  lands,  if  thereafter  redeemed,  shall  be 
a  charge  on  the  land  liable  to  be  sold  and  shall  be  added  to  the 
tax  and  interest.  The  county  treasurer  of  the  county  of  Rock- 
land  may  defer  the  sale  of  any  parcel  of  non-resident  real  estate 
in  such  county  for  unpaid  taxes,  until  the  unpaid  taxes  thereon 
with  accrued  interest  shall  amount  in  the  aggregate  to  the  sum 
of  two  dollars.  (Thus  amended  by  L.  1898,  chap.  362,  L.  1901. 
chap.  261,  L.  1902,  chap.  171,  L.  '1903,  chap.  170,  taking  effect 
April  14,  1903,  and  L.  1906,  chap.  189,  talcing  effect  April  11, 
1906.) 

§  151.  Advertisement  and  sale. —  The  county  treasurer  shah 
immediately  after  the  expiration  of  such  six  months  cause 
to  be  published  at  least  once  in  each  week  for  six  weeks,  in 
two  newspapers  designated  for  the  publication  of  the  ses- 


80  THE  TAX  LAW. 

gion  laws,   a  list  of  real   estate  so  liab!e  to  be   sold,  together  with  a 
notice  that  such  real  estate  Will,  on  a  day  at  the  expiration  of  said  six 
weeks  specified  in  such  notice,  and  the  succeeding  days,  be  sold  at  public 
auction' at  the  courthouse  in  the  county  where  the  same  is  situated,  to 
discharge  the  taxes,  interest  and  expenses  that  may  be  due  thereon  at 
the  time  of  such  sale.  ;  Such  list  shall  contain  the  name  of  tl-e  owrpr 
or  occupant  of  each  piece  of  real  estate  to  be  sold,  as  the  same  appears 
upon  the  assessment  roll  of  the  year  in  which  unpaid  taxes  wre  as- 
sessed, 'a;  brief  description  of  such  real  estate,  and  the  total  amount  of 
such  unpaid  taxes  for  the  year  advertised,  which  said  total  amount  shall 
include  all  taxes,  interest,  expenses  and  other  charges  against  the  prop- 
erty for- the  ye'ar  advertised.     The  comptroller  may  prescribe  the  form 
and  manner  of  preparing  such  list,  which  when  so  prescribed  shall  be 
followed  so  far  as   possible  by  the   several   counties  of  the  state.     No 
such  list  shall  be  published  until  the  same  shall  have  been  submitted 
to  and  approved  by  the  state  comptroller.     On  the  days  mentioned  in 
such  notice  the  county  treasurer  shall  begin  the  sale  of  said  real  estate 
and  continue  the  same  from  day  to  day.     The  charges  for  publishing 
such  notice  shall  be  seventy-five  cents  per  folio  for  the  first  insertion, 
and  fifty  cents  per  folio  for  each  subsequent  insertion.     The  counties  of 
Saint  Lawrence,  Lewis,  Clinton  and  Oneida,  and  the  counties  of  the  state 
other  than  those,  in  the  forest  preserve  are  empowered  to  acquire  and 
hold  such  lands.     Within  twenty  days  after  the  time  for  redemption  has 
expired  the  county  treasurer  of  each  of  the  counties  of  Saint  Lawrence, 
Lewis,   Clinton  and  Oneida   shall   file  with  the  comptroller  a  certified 
statement  of  all  tracts  or  parcels  of  land  situated  in  the  forest  preserve 
which  have  been  bid  in  by  the  county  and  have  not  been  redeemed,  and 
shall  sell  and  convey  to  the  state  any  tract  or  parcel  of  land  specified  in 
such  statement,  which  the  comptroller  shall  designate  within  six  months 
after  cuch  statement  is  filed,  upon  the  payment  of  the  taxes,  interest  and 
expenses  due  thereon  at  the  time  of  the  sale  and  also  all  taxes  assessed 
thereon  since  such  sale,  and  the  comptroller  shall  draw  his  warrant  on 
the  state  treasurer  for  the  amount  thereof  or  credit  the  county  with  such 
amount  on  the  books   of  his   office.     After  the  expiration  of  such   six 
months  in  the  counties  of  Saint  Lawrence,  Lewis,  Clinton  and  Oneida, 
and  after  the  time  for  redemption  has  expired  in  any  other  county,  the 
county  treasurer  is  authorized  in  the  name  of  the  board  of  supervisors 
of  the  county  to  sell  and  convey  under  his  hand  and  seal  such  lands  as 
have  not  been  conveyed  to  the  state  in  the  manner  and  upon  such  terms 
as  the  board  of  supervisors  of  the  county  may  direct.      ( Thus  amended 
by  L.  1898,  chap.  362,  L.  1905,  chap.  445,  and  L.  1906,  chap.  189,  taking 
effect  April  11,  1906.) 

§  152.  Redemption. —  The  owner,  occupant  or  any  other  person  hav- 
ing an  interest  in  any  real  estate  sold  for  taxes  as  aforesaid,  may  re- 
deem the  same  at  any  time  within  one  year  aft?r  the  last  oay  of  such 
sale,  by  paying  to  the  county  treasurer  of  the  county,  for  the  use  of  the 
purchaser,  the  sum  mentioned  in  his  certificate,  together  with  interest 
thereon  at  the  rate  of  ten  per  centum  per  annum,  to  be  computed  from 


THE  TAX  LAW.  81 

the  date  of  such  certificate,  and  any  tax  which  the  holder  of  said  cer- 
tificate shall  have  paid  between  the  days  of  sale  and  redemption,  to- 
gether with  the  share  of  the  expense  of  the  publication  of  notices  to 
redeem  the  real  estate  sold  in  such  county  for  unpaid  taxes,  as  appor- 
tioned by  the  county  treasurer  to  the  real  estate  so  redeemed,  which 
expense  shall  be  in  the  first  instance  a  county  charge  and  shall  be  at 
the  same  rate  as  that  provided  for  the  publication  of  notices  of  tax 
sales.  In  case  any  parcel  of  real  estate  mentioned  in  such  notice  to 
redeem  shall  not  be  redeemed  within  the  one  year  allowed  by  law  for 
such  redemption  then  and  in  that  event  the  share  of  the  expense  of 
the  publication  of  notices  to  redeem  such  unredeemed  real  estate  sold 
in  any  such  county  for  unpaid  taxes,  as  apportioned  by  the  county 
treasurer,  together  with  interest  thereon  for  one  year  at  the  rate  of  ten 
per  centum  per  annum,  shall  be  laid  before  the  board  of  supervisors 
of  such  county  for  reassessment  as  are  other  taxes  and  shall  be  by  such 
board  of  supervisors  reassessed  upon  the  assessment  roll  of  the  current 
year  against  such  real  estate  and  shall  be  a  lien  thereon.  ( Thus 
amended  by  L.  1904,  chap.  535.) 

§  152a.  Redemption  of  real  property  stricken  from  tax  rolls. —  The 
real  property  struck  down  to  a  county  at  said  tax  sale  and  omitted 
from  the  tax  rolls  as  provided  in  section  fifty  of  this  act  shall  not  be 
subject  to  further  sale  after  having  been  once  so  sold  for  taxes.  The  real 
property  so  omitted  from  the  tax  rolls  may  be  redeemed  by  the  owner, 
occupant  or  any  person  having  an  interest  in  the  same,  provided  the 
county  has  not  acquired  a  title  in  fee  to  such  real  property,  upon  the 
payment  to  the  county  treasurer  for  the  use  and  benefit  of  the  county 
of  a  sum  equal  to  the  gross  amount  of  the  taxes,  expenses  of  such  sale, 
penalty  and  interest  thereon,  together  with  the  tax  and  interest  thereon 
which  would  have  been  due  on  said  real  property  had  it  been  taxed 
during  each  of  the'  years  it  was  so  omitted  from  the  tax  rolls.  The 
said  taxes  for  each  of  the  years  during  which  said  real  estate  is  so 
omitted  from  the  tax  rolls  shall  be  computed  on  the  basis  of  the  as- 
sessed valuations  returned  on  said  real  property  by  the  assessors  of  the 
several  tax  districts  and  at  the  rate  fixed  by  the  board  of  supervisors 
as  the  tax  rate  for  the  tax  district  within  which  said  real  estate  is 
situated.  (Section  inserted  by  L.  1905,  chap.  447.) 

§  153.  Conveyance  by  county  treasurer. — If  such  real 
estate,  or  any  portion  thereof,  be  not  redeemed  as  herein 
provided,  the  county  treasurer  shall  execute  to  the  purchaser 
a  conveyance  of  the  real  estate  so  sold,  the  description  of 
which  real  estate  shall  include  a  specific  statement  of  whose 
title  or  interest  is  thereby  conveyed,  so  far  as  appears  on 
the  record,  which  conveyance  shall  vest  in  the  grantee  an 
absolute  estate  in  fee,  subject,  however,  to  all  claims  the 
county  or  state  may  have  thereon  for  taxes  or  liens  or  in- 
cumbrance.  The  county  treasurer  shall  receive  from  the 
purchaser  fifty  cents  for  preparing  such  conveyance  and  ten 
cents  additional  for  each  piece  or  parcel  of  land  described 
therein,  exceeding  the  first.  All  purchases  made  for  the 
county  shall  be  included  in  one  conveyance,  for  which  the 
county  treasurer  shall  receive  ten  dollars.  Every  such  con- 


82  THE  TAX  LAW. 

veyance  shall  be  executed  by  the  treasurer  of  the  county, 
under  his  hand  and  seal,  and  may  be  recorded  in  the  same 
manner  and  with  like  effect  as  a  conveyance  of  real  estate 
properly  acknowledged  or  proven.  The  money  received  by 
the  county  treasurer  on  every  such  sale  shall  be  applied  by 
him,  after  deducting  the  expenses  thereof,  in  like  manner 
as  if  the  same  had  been  paid  to  him  by  the  collectors  of  the 
several  towns.  (Thus  amended  by  L.  1897,  chap.  490,  and 
ly  L.  1898,  chap.  339.) 

§  154.  Conveyance  and  its  effect. — A  purchaser  or  his 
legal  representative  may,  upon  receiving  a  conveyance  under 
ana  by  virtue  thereof,  possess  and  enjoy  for  his  own  use  the 
real  estate  described  in  such  conveyance,  unless  redeemed  as 
herein  provided,  and  after  the  expiration  of  the  time  to  re- 
deem the  same,  may  cause  the  occupant  of  such  real  estate  to 
be  removed  therefrom,  and  the  possession  to  be  "delivered  to 
him  in  the  same  manner  and  by  the  same  proceedings,  and 
before  the  same  officers  as  in  the  cass  of  a  tenant  holding 
over  after  the  expiration  of  his  term  without  permission  of 
his  landlord. 

§  155.  When  purchase  money  to  be  refunded. — When- 
ever any  purchaser  under  such  sale  shall  be  unable  to  regain 
possession  of  the  real  estate  purchased  by  him  by  reason  of 
error  or  irregularity  in  the  assessment  or  levying  of  ?,  t?.x,  or 
in  proceeding:  for  the  collection  thereof,  the  board  of  super- 
visors of  the  county  snail  refund  the  purchase  money  so 
paid,  with  interest  upon  the  same  being  presented  and 
audited  as  other  county  charges,  and  such  moneys  shall  be 
charged  over  to  the  tax  district  where  the  irregularity  arose. 

§  156.  Lands  which  the  state  owns  or  upon  which  it  has 
a  lien. — The  county  treasurer  of  any  county  not  embracing 
a  portion  of  the  forest  preserve  shall,  at  least  two  months 
prior  to  any  tax  sale  to  be  held  by  him,  transmit  to  the  comp- 
troller an  accurate  and  complete  list  of  all  the  lands  in  such 
county  to  be  sold  thereat.  The  state  comptroller  shall,  at 
least  two  weeks  prior  to  any  such  tax  sale,  transmit  to  such 
county  treasurer  a  list  of  all  lands  advertised  to  be  sold  at 


THE  TAX  LAW.  83 

such  tax  sale,  belonging  to  the  state,  or  shall  then  be  mortgaged 
to  the  commissioners  for  loaning  certain  moneys  of  the  United 
States,  or  against  which  the  state  holds  a  bond  or  lien,  for  any 
part  of  the  purchase  money  thereof,  or  for  which  the  state  may 
then  hold  a  tax  sale  certificate.  The  county  treasurer  conduct- 
ing such  sale  shall  bid  in  for  the  state  all  lands  described  in 
the  list  transmitted  to  him  by  the  comptroller,  and  shall,  at  the 
close  of  such  sale,  transmit  to  the  comptroller  a  verified  and 
itemized  statement  showing  the  amount  of  each  bid  made  in  the 
name  of  the  state  thereat,  and  the  state  comptroller  shall, 
within  ten  days  after  the  receipt  by  him  of  such  statement, 
draw  his  warrant  on  the  state  treasurer  for  the  amount  thereof 
or  credit  the  county  with  the  amount  of  such  statement  on  the 
books  of  his  office. 

§  157.  Provisions  relative  to  comptroller  to  apply  to  treas- 
urer.—  The  provisions  of  article  six  of  this  act,  entitled  "  sales 
by  comptroller  for  unpaid  taxes  and  redemption  of  lands," 
shall,  in  so  far  as  it  is  not  otherwise  herein  provided,  govern 
and  control  the  action  of  the  county  treasurer,  who  shall  per- 
form the  duties  therein  devolved  upon  the  comptroller  and  the 
same  rights  and  remedies  shall  be  deemed  to  exist  under  the 
provisions  of  this  article  as  are  provided  for  in  said  article  six. 

§  158.  Article  not  to  relate  to  certain  cities. —  This  or  the 
preceding  article  shall  not  affect  any  law  relating  to  the  sale  of 
real  estate  for  taxes  in  any  city. 

f  159.  Expense  of  publishing  notice  to  redeem. —  Where  a 
tax  sale  has  been  held  by  a  county  treasurer  pursuant  to  this 
article,  the  expense  of  publishing  the  notice  to  redeem  as  re- 
quired by  section  one  hundred  and  thirty  of  this  chapter  shall 
be  apportioned  as  equitable  as  may  be  between  the  several  pieces 
or  parcels  included  therein.  The  amount  so  apportioned  to  any 
parcel  shall  be  paid  to  the  county  treasurer  by  the  purchaser  at 
the  tax  sale  upon  the  execution  of  a  conveyance  to  him.  If  a 
parcel  of  land  is  redeemed  subsequent  to  the  publication  of  the 
notice,  the  person  redeeming  shall  pay  to  the  county  treasurer, 
in  addition  to  the  amount  required  by  section  one  hundred  and 
fifty- two,  the  expense  of  publishing  the  notice  to  redeem  the 
same.  If  a  parcel  of  land  is  bid  in  by  the  county  and  is  not  re- 
deemed, the  expense  of  publishing  the  notice  to  redeem  shall  be 
a  county  charge.  The  money  received  by  a  county  treasurer  for 
the  expense  of  publishing  the  redemption  notices  shall  be  ap- 
plied by  him  to  pay  the  publishers  therefor.  (Added  by  L* 
1905,  chap.  278.) 


84  THE  TAX  LAW, 


rAKTTCLE  VUL 

STATE  BOARD  OF  TAX  COMMISSIONERS;  STATE  BOARD  OF 
EQUALIZATION. 

Section  170.  State  board  of  tax  commissioners. 

171.  Powers  and  duties  of  board  of  tax  commissioners. 

172.  Tax  commissioners  to  visit  counties. 

173.  State  board  of  equalization;  powers  and  duties. 

174.  Appeals  to  the  state  board   of   tax  commissioners   from 

equalization  of  board  of  supervisors, 

175.  Appeals,  how  conducted. 

176.  Determination  of  appeals. 

177.  Costs  on  appeal. 

§  170.  State  board  of  tax  commissioners. —  The  tax  com- 
missioners now  in  office  shall  continue  in  office  for  the  terms 
for  which  they  were  appointed,  and  they  and  their  successors 
shall  constitute  the  state  board  of  tax  commissioners.  On 
the  expiration  of  their  terms  the  governor  shall  appoint  three 
commissioners  by  and  with  the  advice  and  consent  of  the 
senate,  to  hold  office  for  three  years,  and  so  classified  that 
the  term  of  office  of  one  of  them  shall  expire  with  the  thirty- 
first  day  of  December  in  each  year,  and  in  case  of  a  vacancy 
the  appointment  shall  be  for  the  unexpired  term.  Each 
commissioner  shall  receive  an  annual  compensation  of  five 
thousand  dollars,  payable  monthly,  and  in  addition  thereto 
the  expenses  actually  incurred  by  him,  in  the  discharge  of 
his  official  duties,  including  expenses  while  attending  meet- 
ings of  the  commission.  (Thus  amended  by  L.  1900,  chap. 
94,  idking  effect  March  8,  1900.) 

§  171.  Powers  and  duties  of  state  board  of  tax  commis- 
sioners.—  The  state  board  of  tax  commissioners  shall: 

First.  Investigate  and  examine,  from  time  to  time,  as  to 
the  methods  of  assessment  within  the  state. 

Second.  Furnish  local  assessors  with  such  information  as 
may  be  necessary  or  proper  to  aid  them  in  making  the  assess- 
ment thereof. 

Third.  Make  such  rules  and  regulations  as  may  be  neces- 
lary  to  enforce  the  provisions  of  this  article  and  prepare 


THE  TAX  LAW.  85 

forms  for  reports  and  assessment-rolls,  and  furnish  the  sam« 
to  assessors  and  other  officers  at  the  expense  of  the  state. 

Fourth.  Take  testimony  and  hear  proofs,  under  oath,  with 
reference  to  any  matter  within  the  line  of  its  official  duty. 
Any  member  of  such  board  may  be  designated  for  that  pur- 
pose. And  it  may  require  from  all  state  and  municipal  offi- 
cers such  information  aa  may  be  necessary  for  the  proper 
discharge  of  its  duties. 

Fifth.  Hold  meetings  at  an  office  to  be  assigned  it  in  one 
of  the  state  buildings  at  Albany,  at  such  times  as  may  be 
fixed  by  the  chairman  of  the  board  or  by  adjournment 
thereof,  or  at  such  other  places  as  it  may  designate. 

Sixth.  Employ  a  secretary,  prescribe  his  duties  and  fix  his 
salary  at  a  sum  not  to  exceed  thirty-five  hundred  dollars  per 
annum;  employ  not  to  exceed  six  special  agents  who  shall 
be  deemed  the  confidential  agents  of  the  board;  and  experts 
and  other  needed  assistants  and  prescribe  their  duties.  It 
shall  fix  the  compensation  of  such  employees,  which  shall 
not  exceed  in  the  aggregate  the  amount  annually  appro- 
priated by  the  legislature  for  that  purpose. 

Seventh.  Prepare  an  annual  report  to  the  legislature  and 
recommend  such  changes  or  amendments  to  the  tax  laws  as 
it  may  deem  advisable. 

Eighth.  Perform  the  other  powers  and  duties  conferred 
upon  it  by  law.  (Thus  amended  "by  L.  1899,  chap.  712,  tak- 
ing effect  October  1,  1899,  and  L.  1900,  chap.  94,  talcing 
effect  March  8,  1900.) 

§  172.  Tax    commissioners    to    visit    counties. —  Two  or 

more  of  the  members  of  the  board  of  tax  commissioners  shall 
officially  visit  every  county  in  the  state  at  least  once  in  two 
years,  and  inquire  into  the  methods  of  assessment  and  tax- 
ation, and  ascertain  whether  the  assessors  faithfully  dis- 
charge their  duties  and  particularly  as  to  their  compliance 
with  this  act  requiring  the  assessment  of  all  property  not 
exempt  from  taxation  at  its  full  value. 

§  173.  State  board  of  equalization;  powers  and  duties — 
The  commissioners  of  the  land  office  and  the  three  commis- 
sioners of  taxes  shall  constitute  the  state  board  of  equaliza- 
tion. The  state  board  of  equalization  shall  meet  in  the  city 


86  THE  TAX  LAW. 

of  Albany  on  the  first  Tuesday  in  September  in  each  year, 
for  the  purpose  of  examining  and  revising  the  valuations  of 
real  and  personal  property  of  the  several  counties  as  re- 
turned to  the  board  of  tax  commissioners,  and  shall  fix  the 
aggregate  amount  of  assessment  for  each  county,  upon  which 
the  comptroller  shall  compute  the  state  tax.  Such  board 
may  increase  or  diminish  the  aggregate  valuations  of  real 
property  in  any  county  by  adding  or  deducting  such  sum  as 
in  its  opinion  may  be  just  and  necessary  to  produce  a  just 
relation  between  the  valuations  of  real  property  in  the  state. 
But  it  shall,  in  no  instance,  reduce  the  aggregate  valuations 
of  all  the  counties  below  the  aggregate  valuations  thereof  as 
so  returned.  The  comptroller  shall  immediately  ascertain 
from  this  assessment,  a  copy  of  which  shall  be  transmitted 
to  him,  the  proportion  of  state  tax  each  county  shall  pay, 
and  mail  a  statement  of  the  amount  to  the  county  clerk,  and 
to  the  chairman  and  clerk  of  the  board  of  supervisors  of  each 
county. 

§  174.  Appeals  to  the  state  board  of  tax  commissioners  from 
equalization  by  board  of  supervisors. —  Any  supervisor  may 
appeal  in  behalf  of  the  town,  city  or  ward,  which  he  wholly 
or  in  part  represents,  to  the  state  board  of  tax  commission- 
ers, from  any  act  or  decision  of  the  board  of  supervisors,  in 
the  equalization  of  assessments  and  the  correction  of  the  as- 
sessment-rolls. If  such  appeal  is  brought  in  behalf  of  a 
town,  a  majority  of  the  town  board  of  such  town,  if  in  be- 
half of  a  city,  a  majority  of  the  supervisors  representing 
such  city,  or  if  the  assessment  in  the  wards  of  any  city  are 
equalized  separately  and  such  wards  have  separate  assess- 
ment-rolls, then  the  alderman  or  aldermen  representing  such 
ward  in  the  common  council  of  the  city,  shall  first  consent 
to  and  approve  of  the  bringing  of  such  appeal.  Such  ap- 
peal shall  be  brought  within  ten  days  after  the  delivery  of  the 
assessment-roll  to  the  collector  by  filing  in  the  office  of  the 
county  clerk  a  notice  thereof,  with  such  consent  indorsed 
thereon  or  annexed  thereto,  together  with  the  affidavit  of  the 
supervisor  so  appealing,  that  in  his  opinion  injustice  has 
been  done  to  such  town,  city  or  ward  by  the  act  or  decision 
from  which  the  appeal  is  taken ;  and  also  within  such  time, 


THE  TAX  LAW.  87 

by  serving  personally  or  by  mail,  a  duplicate  or  copy  of  such 
notice,  consent  and  affidavit  on  the  chairman  or  clerk  of  the 
board  of  supervisors,  and  by  mailing  such  a  copy  or  dupli- 
cate to  the  state  board  of  tax  commissioners. 

§  175.  Appeals,  how  conducted. —  The  board  of  tax  com- 
missioners may  prepare  a  form  of  petition  and  notice  of 
appeal  from  decisions  of  the  board  of  supervisors  in  the 
equalization  of  assessment  and  rules  and  regulations  in  re- 
lation to  bringing  such  appeals  to  a  hearing  or  trial  thereof. 
Such  rules  shall  provide  for  a  hearing  on  the  papers  and 
proofs  submitted  to  the  board  of  supervisors  on  making  the 
equalization,  in  case  the  party  so  desires,  and  also,  in  case 
the  notice  of  appeal  so  specifies,  for  the  taking  of  additional 
evidence  offered  by  either  party.  The  appeal  shall  be  heard 
in  the  county  in  which  it  originated.  In  either  case  such 
hearing  shall  be  had  at  a  time  and  place  to  be  fixed  by  the 
board  upon  notice  of  at  least  twenty  days  by  mail  to  the 
party  appealing  and  to  the  clerk  of  the  board  of  supervisors 
of  the  county  in  which  the  appeal  is  taken.  If  the  appellant 
or  his  successor  fails  to  appear  at  the  time  and  place  ap- 
pointed or  upon  any  day  to  which  such  hearing  and  trial 
shall  be  adjourned,  the  board  shall  make  an  order  dismissing 
the  appeal,  which  shall  have  the  same  effect  as  if  the  appeal 
had  not  been  sustained  after  a  hearing  on  the  merits. 

§  176.  Determination  of  appeals. —  On  every  such  hearing 
or  trial,  the  board  of  tax  commissioners  shall  determine 
whether  any,  and  if  any,  what  deductions  ought  to  be  made 
from  the  aggregate  corrected  value  of  the  real  and  personal 
property  of  such  tax  district  as  made  and  to  what  tax  dis- 
trict or  districts  in  such  county  the  amount  of  such  deduc- 
tions, if  any,  shall  be  added;  and  shall  certify  their  deter- 
mination, in  writing,  to  such  board  of  supervisors  and  for- 
ward the  same  by  mail  within  ten  days  thereafter  to  the 
clerk  of  the  board,  directed  to  him  at  his  post-office  address 
and  forward  a  copy  thereof  to  the  supervisor  appealing. 
Such  determination  shall  be  carried  into  effect  by  such  board 
at  its  next  annual  session. 

§  177.  Costs  on  appeal. — The  board  of  tax  commissioners 
shall  certify  the  reasonable  expenses  on  every  such  appeal, 


88  THE  TAX  LAW. 

not  exceeding  the  sum  of  two  thousand  dollars,  for  services 
of  counsel  and  one  thousand  dollars  for  all  other  expenses, 
including  the  compensation  and  expense  of  the  stenographer. 
If  such  appeal  is  not  sustained,  the  costs  and  expenses 
thereof  so  certified  shall  be  a  charge  upon  the  tax  district  or 
districts  taking  such  appeal  and  shall  be  levied  thereon  by 
the  board  of  supervisors.  If  the  appeal  is  sustained,  the 
amount  of  such  costs  and  expenses  so  certified  shall  be 
levied  by  the  board  of  supervisors  upon,  and  collected  from, 
the  county  in  the  assessment  and  collection  of  taxes  for  the 
current  year,  except  the  tax  district  or  tax  districts  whose 
appeal  is  sustained.  If  there  shall  be  appeals  by  more  than 
one  tax  district  in  the  county,  some  of  which  are  sustained  and 
some  dismissed,  the  state  board  shall  decide  what  portion  of 
such  costs  and  expenses  shall  be  borne  by  any  tax  district  whose 
appeal  is  dismissed. 


89 


ARTICLE  IX. 

CORPORATION  TAX. 

Section  180.  Organization  tax. 

181.  License  tax  on  foreign  corporations. 

182.  Franchise  tax  on  corporations. 

183.  Certain  corporations  exempted  from  tax  on  capital  stock. 

184.  Additional    franchise    tax    on    transportation    and    trans- 

mission corporations  and  associations. 

185.  Franchise  tax  on  elevated  railroads  or  surface  railroads 

not  operated  by  steam. 

186.  Franchise  tax  on  water-works  companies,  gas  companies, 

electric    or    steam    heating,    lighting   and    power    com- 
panies. 

187.  Franchise  tax  upon  insurance  corporations. 
187a.  Franchise  tax  upon  trust  companies. 

187b.  Franchise  tax  on  savings  banks. 

188.  Tax  upon  foreign  bankers. 

189.  Report  of  corporations. 

190.  Value  of  stock  to  be  appraised. 

191.  Further  requirements  as  to  reports  of  corporations. 

192.  Powers  of  comptroller  to  examine  into  affairs  of  corpo- 

rations. 

193.  Notice  of  statement  of  tax;  interest. 

194.  Payment  of  tax  and  penalty  for  failure. 

195.  Revision  and  readjustment  of  accounts  by  comptroller. 

196.  Review  of  determination  of  comptroller  by  certiorari. 

197.  Regulations  as  to  such  writ  of  pprtiorari. 

198.  Warrant  for  the  colWtion  of  taxes. 

199.  Information  of  delinquents. 

200.  Action   for  recovery   of  taxes;    forfeiture   of   charter   of 

delinquent  corporations. 

201.  Reports  to  be  made  by  the  secretary  of  state. 

202.  Exemptions  from  other  state  taxation. 

203.  Application  of  tax. 

§  180.  Organization  tax. —  Every  stock  corporation  incor- 
porated under  any  law  of  this  state  shall  pay  to  the  state 
treasurer  a  tax  of  one-twentieth  of  one  per  centum  upon  the 
amount  of  capital  stock  which  the  corporation  is  authorized 
to  have,  and  a  like  tax  upon  any  subsequent  increase.  Pro- 
vided, that  in  no  case  shall  such  tax  be  less  than  one  dollar. 
Such  tax  shall  be  due  and  payable  upon  the  incorporation 
of  such  corporation  or  upon  the  increase  of  its  capital  stock. 
Except  in  the  case  of  a  railroad  corporation  neither  the  sec- 
retary of  state  nor  county  clerk  shall  file  any  certificate  of 
incorporation  or  article  of  association,  or  give  any  certificate 


90  THE  TAX  LAW. 

to  any  such  corporation  or  association  until  he  is  furnished  a 
receipt  for  such  tax  from  the  state  treasurer,  and  no  stock 
corporation  shall  have  or  exercise  any  corporate  franchise  or 
powers,  or  carry  on  business  in  this  state  until  such  tax  shall 
have  been  paid.  And  in  case  of  a  decrease  of  capital  stock, 
upon  which  the  tax  required  by  law  has  been  paid,  and  a  subse- 
quent increase  thereof,  a  tax  shall  be  paid  only  upon  so  much  of 
such  increase  as  exceeds  the  amount  of  capital  stock  upon  which 
a  tax  has  been  before  paid.  In  case  of  the  consolidation  of 
existing  corporations  into  a  corporation,  such  new  corporation 
shall  be  required  to  pay  the  tax  hereinbefore  provided  for  only 
upon  the  amount  of  its  capital  stock  in  excess  of  the  aggregate 
amount  of  capital  stock  of  said  corporations.  This  section  shall 
not  apply  to  state  and  national  banks  or  to  building,  mutual 
loan,  accumulating  fund  and  cooperative  associations.  A  rail- 
road corporation  need  not  pay  such  tax  at  the  time  of  filing  its 
certificate  of  incorporation,  but  shall  pay  the  same  before  the 
railroad  commissioners  shall  grant  a  certificate,  as  required  by 
the  railroad  law,  authorizing  the  construction  of  the  road  as- 
proposed  in  its  articles  of  association,  and  such  certificate  shall 
not  be  granted  by  the  board  of  railroad  commissioners  until  it 
is  furnished  with  a  receipt  for  such  tax  from  the  state  treasurer. 
(Thus  amended  by  L.  1901,  chap.  448,  talcing  effect  April  22,. 
1901,  and  L.  1906,  chap.  524,  taking  effect  May  21,  1906.) 

§  181.  License  tax  on  foreign  corporations. —  Every  foreign 
corporation,  except  banking  corporations,  fire,  marine,  casualty 
and  life  insurance  companies,  cooperative  fraternal  insurance 
companies,  and  building  and  loan  associations,  authorized  to  da 
business  under  the  general  corporation  law,  shall  pay  to  the 
state  treasurer,  for  the  use  of  the  state,  a  license  fee  of  one- 
eighth  of  one  per  centum  for  the  privilege  of  exercising  its. 
corporate  franchises  or  carrying  on  its  business  in  such  corporate 
or  ogauized  capacity  in  this  state,  to  be  computed  upon  the 
basis  of  the  capital  stock  employed  by  it  within  this  state, 
during  the  first  year  of  carrying  on  its  business  in  this  state; 
and  if  any  year  thereafter  any  such  corporation  shall  employ 
an  increased  amount  of  its  capital  stock  within  this  state,  the 
same  license  fee  shall  be  due  and  payable  upon  such  increase. 
The  measure  of  the  amount  of  capital  stock  employed  in  this 


THE  TAX  LAW.  91 

state  shall  be  such  a  portion  of  the  issued  capital  stock  as  tho 
gross  assets  employed  in  any  business  within  this  state  bear  to 
the  gross  assets  wherever  employed  in  business.  For  purposes 
of  taxation,  the  capital  of  a  corporation  invested  in  the  stock  of 
another  corporation  shall  be  deemed  to  be  assets  located  where 
the  physical  propert}r  represented  by  such  stock  is  located.  Xo 
action  shall  be  maintained  or  recovery  had  in  any  of  the  courts 
in  this  state  by  such  foreign  corporation  without  obtaining  a 
receipt  for  the  license  fee  hereby  imposed  within  thirteen 
months  after  beginning  such  business  within  the  state,  or  if  at 
the  time  this  section  takes  effect  such  a  corporation  has  been 
engaged  in  business  within  this  state  for  more  than  twelve 
months,  without  obtaining  such  receipt  within  thirty  days  after 
such  tax  is  due.  (Thus  amended  by  L.  1901,  chap.  558,  and 
L.  1906,  chap.  474,  taking  effect  October  31,  1906.) 

§  182.  Franchise  tax  on  corporations. —  For  the  privilege  of 
doing  business  or  exercising  its  corporate  franchises  in  this 
state  every  corporation,  joint-stock  company  or  association, 
doing  business  in  this  state,  shall  pay  to  the  state  treasurer 
annually,  in  advance,  an  annual  tax  to  be  computed  upon  the 
basis  of  the  amount  of  its  capital  stock,  employed  during  the 
preceding  year  within  this  state  and  upon  each  dollar  of  such 
amount.  The  measure  of  the  amount  of  capital  stock  employed 
in  this  state  shall  be  such  a  portion  of  the  issued  capital  stock 
as  the  gross  assets  employed  in  any  business  within  this  state 
bear  to  the  gross  assets  wherever  employed  in  business.  For 
purposes  of  taxation,  the  capital  of  a  corporation  invested  in  the 
stock  of  another  corporation  shall  be  deemed  to  be  assets  located 
where  the  physical  property  represented  by  such  stock  is  located. 
If  the  dividends  upon  the  capital  stock  amount  to  six,  or  more 
than  six  per  centum  upon  the  par  value  of  the  capital  stock, 
during  any  year  ending  with  the  thirty-first  day  of  October, 
the  tax  shall  be  at  the  rate  of  one-quarter  of  a  mill  for  each 
one  per  centum  of  dividends  made  or  declared  upon  the  par 
value  of  the  capital  stock  during  said  year.  If  such  dividend 
or  dividends  amount  to  less  than  six  per  centum  on  the  par 
value  of  the  capital  stock,  and 

(1)   The   assets   do  not  exceed   the  liabilities,   exclusive  of 
capital  stock,  or 


92  THE  TAX  LAW. 

(2)  The  average  price  at  which  such  stock  sold  during  said 
year,  did  not  equal  or  exceed  its  par  value,  or 

(3)  If  no  dividend  was  declared,  then  each  dollar  of  the 
amount  of  capital  stock  employed  in  this  state,  determined  as 
hereinbefore  provided,  shall  be  taxed  at  the  rate  of  three-fourths 
of  one  mill.     If  such  dividend  or  dividends  amount  to  less  than 
six  per  centum  on  the  par  value  of  the  capital  stock,  and 

( 1 )  The  assets  exceed  the  liabilities,  exclusive  of  capital  stock, 
by  an  amount  equal  to  or  greater  than  the  par  value  of  the 
capital  stock,  or 

(2)  The  average  price  at  which  such  stock  sold  during  said 
year  is  equal  to  or  greater  than  the  par  value,  then  the  amount 
of  capital  stock,  determined  as  hereinbefore  provided  to  be  em- 
ployed in  this  state,  shall  be  taxed  at  the  rate  of  one  and  one 
half  mills  on  each  dollar  of  the  valuation  of  the  capital  stock 
employed  in  this  state,  but  such  valuation  shall  not  be  less  than 

(1)  The  par  value  of  such  stock, 

(2)  The  difference  between  the  assets  and  liabilities,  exclusive 
of  capital  stock, 

(3)  The  average  price  at  which  such  stock  sold  during  said 
year. 

If  such  corporation,  joint-stock  company  or  association  shall 
have  more  than  one  kind  of  capital  stock,  and  upon  one  of  such 
kinds  of  stock  a  dividend  or  dividends  amounting  to  six,  or  more 
than  six  per  centum,  upon  the  par  value  thereof,  has  been  made 
or  declared,  and  upon  the  other  no  dividend  has  been  made  or 
declared,  or  the  dividend  or  dividends  made  or  declared  thereon, 
amount  to  less  than  six  per  centum  upon  the  par  value  thereof, 
then  the  tax  shall  be  at  the  rate  of  one-quarter  of  a  mill  for  each 
one  per  centum  of  dividends  made  or  declared  upon  the~  capital 
stock  upon  the  par  value  of  which  the  dividend  or  dividends 
made  or  declared  amount  to  six  or  more  than  six  per  centum,  and 
in  addition  thereto  a  tax  shall  be  charged  upon  the  capital  stock 

(1)  Upon  which  no  dividend  was  made  or  declared,  or 

(2)  Upon  which  the  dividend  or  dividends  made  or  declared 
did  not  amount  to  six  per  centum  on  the  par  value,  at  the  rate 
as  hereinbefore  provided  for  the  taxation  of  capital  stock  upon 
which  no  dividend  was  made  or  declared,  or  upon  which  tin- 
dividend  or  dividends  made  or  declared  did  not  amount  to  six 


THE  TAX  LAW.  93 

per  centum  on  the  par  value.     (Thus  amended  by  L.  1901,  chap. 
558,  andL.  1906,  chap.  474,  taking  effect  October  31,  1906.) 

§  183.  Certain  corporations  exempt  from  tax  on  capital 
stock. —  Banks,  savings  banks,  institutions  for  savings,  title 
guaranty,  insurance  or  surety  corporations,  every  trust  company 
incorporated,  organized  or  formed,  under,  by  or  pursuant  to  a 
law  of  this  state,  and  any  company  authorized  to  do  a  trust  com- 
pany business,  solely  or  in  connection  with  any  other  business, 
under  a  general  or  special  law  of  this  state,  laundry  corporations, 
manufacturing  corporations  to  the  extent  only  of  the  capital 
actually  employed  in  this  state  in  manufacturing,  and  in  the 
sale  of  the  product  of  such  manufacturing,  mining  corporation,?, 
wholly  engaged  in  mining  ores  within  this  state,  agricultural 
and  horticultural  societies  or  associations,  and  corporations, 
joint-stock  companies  Or  associations  owning  or  operating  ele- 
vated railroads  or  surface  railroads  not  operated  by  steam,  or 
formed  for  supplying  water  or  gas  for  electric  or  steam  heating, 
lighting  or  power  purposes,  and  liable  to  a  tax  under  sections 
one  hundred  and  eighty-five  and  one  hundred  and  eighty-six  of 
this  chapter,  shall  be  exempt  from  the  payment  of  the  taxes  pre- 
scribed by  section  one  hundred  and  eighty-two  of  this  chapter. 
But  such  a  laundrying,  manufacturing  or  mining  corporation 
shall  not  be  exempted  from  the  payment  of  such  tax,  unless  at 
least  forty  per  centum  of  the  capital  stock  of  sue  hcorporation  is 
invested  in  property  in  this  state  and  used  by  it  in  its  laundrying, 
manufacturing  or  mining  business  in  this  state.  (Thus  amended 
ly  L.  1897,  chap.  785,  L.  1901,  chap.  558,  and  L.  1906,  cliap. 
474,  taking  effect  October  31,  1906.) 

§  184.  Additional  franchise  tax  on  transportation  and  trans- 
mission corporations  and  associations. —  Every  corporation  and 
jointstock  association  formed  for  steam  surface  railroad, 
canal,  steamboat,  ferry,  express,  navigation,  pipe-line,  trans- 
fer, baggage  express,  telegraph,  telephone,  palace  car  or 
sleeping  car  purposes,  and  all  other  transportation  corpora- 
tions not  liable  to  ta;:cs  under  sections  one  hundred  and 
eighty-five  or  one  hundred  and  eighty-six  of  this  chapter, 
shall  pay  for  the  privilege  of  exercising  its  corporate  fran- 
chises or  carrying  on  its  business  in  such  corporate  or  organ- 
ized capacity  in  this  state,  an  annual  excise  tax  or  license 


94  THE  TAX  LAW. 

fee  which  shall  be  equal  to  five-tenths  of  one  per  centum 
upon  its  gross  earnings  within  the  state,  which  shall  include 
its  gross  earnings  from  its  transportation  or  transmission 
business  originating  and  terminating  within  this  state,  but 
shall  not  include  earnings  derived  from  business  of  an  inter- 
state character.  All  settlements  for  such  taxes  heretofore 
based  by  the  comptroller  upon  gross  earnings  excluding  earn- 
ings from  interstate  business,  have  been  ratified  and  con- 
firmed, except  that  the  accounts  for  taxation  under  section 
six  of  chapter  three  hundred  and  sixty-one  of  the  laws  of 
eighteen  hundred  and  eighty-one,  for  the  years  eighteen 
hundred  and  ninety-two  and  eighteen  hundred  and  ninety-three, 
shall  be  settled  and  adjusted  by  the  comptroller  by  excluding 
the  earnings  of  an  interstate  character  as  provided  by  this  sec- 
tion. 

§  185.  Franchise  tax  on  elevated  railroads  or  surface  rail- 
roads not  operated  by  steam. —  Every  corporation,  joint-stock 
compan}r  or  association  owning  or  operating  any  elevated  rail- 
road or  surface  railroad  not  operated  by  steam  shall  pay  to  the 
state  for  the  privilege  of  exercising  its  corporate  franchise  or 
carrying  on  its  business  in  such  corporate  or  organized 
capacity  within  this  state,  an  annual  tax  which  shall  be  one 
per  centum  upon  its  gross  earnings  from  all  sources  within 
this  state,  and  three  per  centum  upon  the  amount  of  divi- 
dends declared  or  paid  in  excess  of  four  per  centum  upon 
the  actual  amount  of  paid-up  capital  employed  by  such  cor- 
poration, joint-stock  company  or  association.  Any  such  rail- 
road corporation  whose  property  is  leased  to  another  railroad 
corporation  shall  only  be  required  under  this  section  to  pay  a 
tax  of  three  per  centum  upon  the  dividends  declared  and  paid  in 
excess  of  four  per  centum  upon  the  amount  of  its  capital  stock. 
(Thus  amended  by  L.  1906,  cliap.  474,  taking  effect  October  31, 
1906.) 

§  186.  Franchise  tax  on  water-works  companies,  gas  com- 
panies, electric  or  steam  heating,  lighting  and  power  compa- 
nies.— Every  corporation,  joint-stock  company  or  association, 
formed  for  supplying  water  or  gas,  or  for  electric  or  steam 
heating,  lighting  or  power  purposes,  shall  pay  to  the  state 


THE  TAX  LAW.  95 

for  the  privilege  of  exercising  its  corporate  franchises  or 
carrying  on  its  business  in  such  corporate  or  organized  ca- 
pacity in  this  state,  an  annual  tax  which  shall  be  five-tenths 
of  one  per  centum  upon  its  gross  earnings  from  all  sources 
within  this  state,  and  three  per  centum  upon  the  amount  of 
dividends  declared  or  paid  in  excess  of  four  per  centum  upon 
the  actual  amount  of  paid-up  capital  employed  by  such  cor- 
poration, joint-stock  company  or  association. 

§  187.  Franchise  tax  on  insurance  corporations. —  An  an- 
nual state  tax  for  the  privilege  of  exercising  corporate  fran- 
chises or  for  carrying  on  business  in  their  corporate  or  or- 
ganized capacity  within  this  state  equal  to  one  per  centum  on 
the  gross  amount  of  premiums  received  during  the  preceding 
calendar  year  for  business  done  at  any  time  in  this  state,  which 
gross  amount  of  premiums  shall  include  all  premiums  received 
during  such  preceding  calendar  year  on  all  policies,  certificates, 
renewals,  policies  subsequently  canceled,  insurance  and  rein- 
surance during  such  preceding  calendar  year,  and  all  premiums 
that  are  received  during  such  preceding  calendar  year  on  all 
policies,  certificates,  "renewals,  policies  subsequently  canceled, 
insurance  and  reinsurance  executed,  issued  or  delivered  in  all 
years  prior  to  such  preceding  calendar  year,  whether  such  pre- 
miums were  in  the  form  of  money,  notes,  credits,  or  any  other 
substitute  for  money,  shall  be  paid  annually  into  the  treasury 
of  the  state,  in  the  year  nineteen  hundred  and  five  on  or  before 
July  first,  and  in  all  subsequent  years,  on  or  before  the  first  day 
of  June  by  the  following  corporations: 

1.  Every  domestic  insurance  corporation,  incorporated,  or- 
ganized or  formed  under,  by,  or  pursuant  to  a  general  or  special 
law; 

2.  Every  insurance  corporation,   incorporated,   organized   or 
formed  under,  \)j,  or  pursuant  to  the  laws  of  any  other  state  of 
the  United  States,  and  doing  business  in  this  state,  except  a 
corporation  doing  a  fire  insurance  business  or  a  marine  insur- 
ance business ; 

3.  Every  insurance  corporation,  incorporated,  organized  or 
formed  under,  by,  or  pursuant  to  the  laws  of  any  state  without 
the  United  States,  or  of  any  foreign  country,  except  such  a  cor- 


96  THE  TAX  LAW. 

poration  doing  a  life,  health  or  casualty  insurance  business,  and 
doing  business  in  this  state;  but  the  tax  on  gross  premiums  of 
a  corporation  so  incorporated,  organized  or  formed  and  doing  a 
fire  or  marine  insurance  business  within  the  state  shall  be  equal 
to  five-tenths  of  one  per  centum.  This  section  does  not  apply 
to  a  fraternal  beneficiary  society,  order  or  association,  a  corpora- 
tion for  the  insurance  of  domestic  animals,  a  town  or  county 
cooperative  insurance  corporation,  nor  to  any  corporation  sub- 
ject to  the  supervision  of  or  required  by  or  in  pursuance  of  law 
to  report  to  the  superintendent  of  banks;  but  this  section  does 
apply  to  an  individual,  or  partnership,  or  association  of  under- 
writers known  as  Lloyds  in  so  far  as  corporations  doing  the 
same  kind  of  insurance  business  are  subject  to  its  provisions. 
The  taxes  imposed  by  this  section  shall  be  in  addition  to  all 
other  fees,  licenses  or  taxes  imposed  by  this  or  any  other  law, 
except  that  in  assessing  taxes  under  the  reciprocal  provisions  of 
section  thirty-three  of  chapter  thirty-eight  of  the  general  laws, 
credit  shall  be  allowed  for  any  taxes  paid  under  this  section. 
The  term  insurance  corporations  as  used  in  this  article,  shall 
include  a  corporation,  association,  joint  stock  company  or  as- 
sociation, person,  society,  aggregation  or  partnership  by  what- 
ever name  known  doing  an  insurance  business  in  this  state. 
(Thus  amended  by  L.  1897,  chap.  494,  L.  1901,  chap.  118,  and 
L.  1905,  chap.  94.) 

§  187a.  Franchise  tax  on  trust  companies. —  Every  trust 
company  incorporated,  organized  or  formed  under,  by  or 
pursuant  to  a  law  of  this  state,  and  any  company  authorized 
to  do  a  trust  company's  business  solely  or  in  connection  with 
any  other  business,  under  a  general  or  special  law  of  this 
state,  shall  pay  to  the  state  annually  for  the  privilege  of  ex- 
ercising its  corporate  franchise  or  carrying  on  its  business 
in  such  corporate  or  organized  capacity,  an  annual  tax  which 
shall  be  equal  to  one  per  centum  on  the  amount  of  its  capital 
stock,  surplus,  and  undivided  profits.  Any  corporation 
taxed  under  this  section  for  the  year  ending  June  thirtieth, 
nineteen  hundred  and  one,  shall  be  credited  by  the  comp- 
troller with  one-third  of  the  amount  of  taxes  paid  by  it  into 
the  state  treasury  under  the  provisions  of  section  one  hun- 
dred and  eighty-two  of  the  tax  law  for  the  year  ending  Octo- 


THE  TAX  LAW.  97 

ber  thirty-first,  nineteen  hundred.  (Inserted  by  L.  1901, 
chap.  132,  and  thus  amended  by  L.  1901,  chap.  535,  talcing 
effect  April  25,  1901.) 

§  187b.  Franchise  tax  on  savings  banks Every   savings 

bank  incorporated,  organized  or  formed  under,  by  or  pursu- 
ant to  a  law  of  this  state,  shall  pay  to  the  state  annually  for 
the  privilege  of  exercising  its  corporate  franchise  or  carry- 
ing on  its  business  in  such  corporate  or  organized  capacity, 
an  annual  tax  which  shall  be  equal  to  one  per  centum  on  the 
par  value  of  its  surplus,  and  undivided  earnings.  (Inserted 
by  L.  1901,  chap.  117,  taking  effect  March  16,  1901.) 

§  188.  Tax  upon  foreign  bankers — Every  foreign  banker 
doing  business  in  this  state,  shall  annually  pay  to  the  treas- 
urer a  tax  of  five  per  centum  on  the  amount  of  interest  or 
compensation  of  any  kind  earned  and  collected  by  him  on 
money  loaned,  used  or  employed  in  this  state  by  such  banker. 
The  term,  doing  a  banking  business,  as  used  in  this  section, 
means  doing  such  business  as  a  corporation  may  be  created 
to  do  under  article  two  of  the  banking  law,  or  doing  any 
business  which  a  corporation  is  authorized  by  such  article 
to  do.  The  term,  foreign  banker  doing  a  banking  business 
in  this  state,  as  used  in  this  section,  includes : 

1.  Every  foreign  corporation  doing  a  banking  business  in 
this  state,  except  a  national  bank. 

2.  Every  unincorporated  company,  partnership  or  associa- 
tion of  two  or  more  individuals,  organized  under  or  pursuant 
to  the  laws  of  another  state  or  country,  doing  a  banking  busi- 
ness in  this  state. 

3.  Every  other  unincorporated  company,  partnership,  or 
association,  of  two  or  more  individuals,  doing  a  banking  busi- 
ness in  this  state,  if  the  members  thereof,  owning  more  than 
a  majority  interest  therein,  or  entitled  to  more  than  one-half 
of  the  profits  thereof,  or  who  would,  if  it  were  dissolved,  be 
entitled  to  more  than  one-half  of  the  net  assets  thereof,  are 
not  residents  of  this  state. 

4.  Every  nonresident  of  this  state,  doing  a  banking  busi- 
ness in  this  state,  in  his  own  name  and  right  only.      (Thus 
amended  by  L.  1900,  chap.   500,  taking  effect  April  18, 
1900.) 

7 


98  THB  TAX  LAW. 

VV— 

§  189.  Reports  of  corporations. — Corporations  liable  to  pay 
a  tax  under  this  article  shall  report  as  follows: 

1.  Corporations  paying  franchise  tax. — Every  corporation, 
association  or  joint-stock  company  liable  to  pay  a  tax  under 
section  one  hundred  and  eighty-two  of  this  chapter  shall,  on 
or  before  November  fifteenth  in  each  year,  make  a  written 
report  to  the  comptroller  of  its  condition  at  the  close  of  its 
business  on  October  thirty-first  preceding,  stating  the  amount 
of  its  authorized  capital  stock,  the  amount  of  stock  paid 
in,  the  date  and  rate  per  cent,  of  each  dividend  declared  by 
it  during  the  year  ending  with  such  day,  the  entire  amount 
of  the  capital  of  such  corporation,  and  the  capital  employed 
by  it  in  this  state  during  such  year. 

2.  Transportation  and  transmission  corporations. —  Every 
transportation  or  transmission  corporation,  joint-stock  com- 
pany or  association  liable  to  pay  an  additional  tax  under 
section  one  hundred  and  eighty-four  of  this  chapter,  shall 
also,  on  or  before  August  first  in  each  year,  make  a  written 
report  to  the  comptroller  of  its  condition  at  the  close  of  its 
business  on  June  thirtieth  preceding,  stating  the  amount  of 
its  gross  earnings  from  all  sources  and  the  amount  of  its 
gross  earnings  from  its  transportation  or  transmission  busi- 
ness originating  and  terminating  within  this  state. 

3.  Elevated  and  surface  railroad  corporations. —  Every 
corporation,  joint-stock  company  or  association  liable  to  pay 
a  tax  under  section  one  hundred  and  eighty-five  of  this  chap- 
ter, shall,  on  or  before  August  first  of  each  year,  make  a 
written  report  to  the  comptroller  of  its  condition  at  the  close 
of  its   business   on  June  thirtieth   preceding,    stating  the 
amount  of  its  gross  earnings  from  business  done  in  this  state, 
the  amount  of  dividends  of  every  nature  declared  or  paid 
during  the  year  ending  June  thirtieth,  the  authorized  capi- 
tal of  the  company  and  the  amount  of  capital  stock  actually 
issued  and  outstanding. 

4.  Water-works,  gas,  electric,  steam-heating,  lighting  and 
power   corporations. —  Every   corporation,   joint-stock   com- 
pany or  association  liable  to  pay  a  tax  under  section  one  hun- 
dred and  eighty-six  of  this  chapter,  shall,  on  or  before  De- 
cember first  of  each  year,  make  a  written  report  to  the  comp- 
troller of  its  condition  at  the  close  of  its  business  on  October 


THE  TAX  LAW.  99 

thirty-first  preceding,  stating  the  amount  of  its  gross  earnings 
from  business  done  in  this-  state,  the  amount  of  dividends  of 
every  nature  declared  or  paid  during  the  year  ending  with 
October  thirty-first,  the  authorized  capital  of  the  company  and 
the  amount  of  capital  stock  actually  issued  and  outstanding. 

5.  Insurance     corporations. —  Every     insurance     corporation 
liable  to  pay  a  tax  under  section  one  hundred  and  eighty-seven 
of  this  chapter,  shall,  on  or  before  March  first  in  each  year, 
except  in  the  year  nineteen  hundred  and  five,  and  on  or  before 
the  first  of  April  in  that  year,  make  a  written  report  to  the 
comptroller  of  its  condition  at  the  close  of  its  business  on  De- 
cember thirty-first  preceding,  stating  the  gross  amount  of  all 
premiums  referred  to  in  section  one  hundred  and  eighty-seven 
of  this  chapter,  received  during  the  preceding  calendar  year  on 
business  done  thereby  in  this  state  during  the  year  ending  with 
such  day,  and  at  all  times  prior  thereto,  whether  the  premiums 
were  in  money  or  in  the  form  of  notes,  credits  or  other  sub- 
stitutes for  money.     (Thus  amended  by  L.  1901,  chap.  118,  and 
L.  1905,  chap.  94.) 

6.  Foreign  bankers. —  Every  foreign  banker  liable  to  pay  a 
tax  under  section  one  hundred  and  eighty-eight  of  this  chapter 
shall,  on  or  before  February  first  in  each  year,  make  a  written 
report  to  the  comptroller  of  the  condition  of  his  business  on 
December  thirty-first  preceding,  stating  the  amount  of  tax  for 
which  he  is  liable  under  this  article,  and  giving  in  detail  the 
facts  required  by  the  last  preceding  section  for  the  purpose  of 
ascertaining  and  computing  the  same. 

7.  Trust  companies. —  Every  company  liable  to  pay  a  tax 
under  section  one  hundred  and  eighty-seven-a  of  this  chapter 
shall,  on  or  before  August  first  in  each  year,  make  a  written 
repoit  to  the  comptroller  of  its  condition  at  the  close  of  busi- 
ness on  June  thirtieth  preceding,  separately  stating  the  amount 
of  its  capital  stock,  the  amount  of  its  surplus,  and  the  amount 
of  its  undivided  profits,  and  containing  such  other  data,  inform- 
ation or  matter  as  the  comptroller  may  require.     (Inserted  by 
L.  1901,  chap.  132,  and  L.  1902,  chap.  172,  in  effect  April  6, 
1902.) 

8.  Savings    banks. —  Every    savings    bank   liable  to   pay   a 
tax    under    section    one    hundred    and    eighty-seven-b    of    this 
chapter,  shall  on  or  before  August  first  in  each  year  make  a 
written  report  to  the  comptroller  of  its  condition,  at  the  close 
of  business  on  June  thirtieth  preceding,  stating  the  par  value 


100  THE  TAX  LAW. 

of  its  surplus,  and  undivided  earnings  and  containing  such  other 
data,  information  or  matter  as  the  comptroller  may  require. 
(Inserted  by  L.  1901,  chap.  117,  taking  effect  March  16,  1901.) 

§  190.    Value  of  stock  to  be  appraised If  the  dividend  or 

dividends  amount  to  less  than  six  per  centum  on  the  par  value 
of  the  capital  stock,  and 

(1)  The  assets  exceed  the  liabilities,  exclusive  of  capital  stock, 
by  an  amount  equal  to  or  greater  than  the  par  value  of  the 
capital  stock,  or 

(2)  The  average  price  at  which  such  stock  sold  during  said 
year  is  equal  to  or  greater  than  the  par  value  of  the  capital 
stock-  iheii  the  president,  treasurer  or  secretary  of  the  company 
HaMe  to  pny  a  tax  under  the  provisions  of  section  one  hundred 
and  e::ghty-1wo  of  this  chapter,  shall,  under  oath,  between  the 
first  and  fifteenth  days  of  November  in  each  year,  estimate 
and  appraise  the  capital  stock  of  such  company  at  a  value  which 
value  shall  not  be  less,  however,  than 

(1)  The  average  price  at  which  such  stock  sold  during  said 
year, 

(2)  The  difference  between  the  assets  and  liabilities,  exclusive 
of  capital  stock, 

(3)  The  par  value  thereof, 

and  shall  forward  the  same  to  the  comptroller  with  the  report 
provided  for  in  the  last  section.  If  the  comptroller  is  not  satis- 
fied with  the  \aluation  so  made  and  returned  he  is  authorized 
and  empowered  to  make  a  valuation  thereof,  and  settle  an  ac- 
count upon  the  valuation  so  made  by  him,  and  the  taxes,  penal- 
ties and  interest  to  be  paid  the  state.  (Thus  amended  by  L. 
1906,  chap.  474,  talcing  effect  October  31,  1906.) 

§  191.    Further  requirements  as  to  report  of  corporations.— 

Every  report  required  by  this  article  shall  have  annexed  thereto, 
the  affidavit  of  the  president,  vice-president,  secretary  or 
treasurer  of  the  corporation,  association  or  joint-stock  com- 
pany or  of  the  person  or  one  of  the  persons,  or  the  members  of 
the  partnership  making  the  same,  to  the  effect  that  the  state- 
ments contained  therein  are  true.  Such  reports  shall  contain 
any  other  data,  information  or  matter  which  the  comptroller 
may  require  to  be  included  therein,  and  he  may  prescribe  the 
form  in  which  euch  reports  shall  be  made  and  the  form  of  oath 
thereto.  "When  so  prescribed  such  forms  shall  be  used  in  mak- 
ing the  report.  The  comptroller  may  require  at  any  time  a 
further  or  supplemental  report  under  this  article,  which  shall 
contain  information  and  data  upon  such  matters  as  the  comp- 
troller may  s-pecify. 

§  192.     Powers  of  comptroller  to  examine  into  affairs  of 
corporation —  In  case  any  report  required  by  any  of  the  pre- 


THE  TAX  LAW.  101 

ceding  sections  of  this  article  shall  be  unsatisfactory  to  the 
comptroller,  or  if  any  such  report  is  not  made  as  herein  re- 
quired, the  comptroller  is  authorized  to  make  an  estimate  of 
the  dividends  paid  by  such  corporation  and  the  value  of  the 
capital  stock  employed  by  it,  from  any  such  report  or  from 
any  other  data,  and  to  order  and  state  an  account  according 
to  the  estimate  and  value  so  made  by  him  for  the  taxes,  per- 
centage and  interest  due  the  state  from  such  corporation, 
association,  joint-stock  company,  person  or  partnership.  The 
comptroller  shall  also  have  power  to  examine  or  cause  to  be 
examined  in  case  of  a  failure  to  report  or  in  case  the  report 
is  unsatisfactory  to  him,  the  books  and  records  of  any  such 
corporation,  joint-stock  association,  company,  foreign  banker, 
person  or  partnership,  and  may  hear  testimony  and  take 
proofs  material  for  his  information,  either  personally  or  he 
may  appoint  a  commissioner  by  a  written  appointment  under 
his  hand  and  official  seal  for  that  purposa  Every  commis- 
sioner so  appointed  shall  be  authorized  to  make  such  exam- 
ination and  take  such  testimony  and  hear  such  proofs  and 
report  the  proofs  and  testimony  so  taken  and  the  result  of 
his  examination  so  made  and  the  facts  found  by  him  to  the 
comptroller.  The  comptroller  shall,  therefrom,  or  from  any 
other  data  which  shall  be  satisfactory  to  him,  order  and 
state  an  account  for  the  tax  due  the  state,  together  with  the 
expenses  of  such  examination  and  the  taking  of  such  testi- 
mony and  proofs.  Such  expenses  shall  be  fixed  and  ad- 
justed by  the  comptroller. 

§  19-3.  Notice  of  statement  of  tax;  interest — Upon  audit- 
ing and  stating  every  account  for  taxes  or  other  charges  un- 
der this  article,  the  comptroller  shall  forthwith  send  notice 
thereof  in  writing  to  the  person,  partnership,  company,  as- 
sociation or  corporation  against  whom  the  same  is  made, 
which  notice  may  be  mailed  to  the  post-office  address  of  such 
person,  partnership,  association,  company  or  corporation. 
All  accounts  so  audited  and  stated  shall  bear  interest  upon 
the  total  amount  found  due  thereon  to  the  state,  for  taxes, 
percentage,  interest  and  other  charges,  from  the  expiration 
of  thirty  days  after  sending  such  notice  until  payment 
thereof  shall  be  made. 


102  THE  TAX  LAW. 

§  194.  Payment  of  tax  and  penalty  for  failure. —  A  tax 
imposed  by  sections  one  hundred  and  eighty-two  or  one  hun- 
dred and  eighty-six  of  this  chapter,  shall  be  due  and  payable 
into  the  state  treasury  on  or  before  the  fifteenth  day  of  Janu- 
ary in  each  year.  A  tax  imposed  by  section  one  hundred 
and  eighty-four  of  this  chapter  on  a  transportation  or  trans- 
mission corporation,  or  by  section  one  hundred  and  eighty- 
five,  on  elevated  or  surface  railroads  not  operated  by  steam, 
ghall  be  due  and  payable  into  the  state  treasury  on  or  before 
the  first  day  of  August  in  each  year.  A  tax  imposed  by  sec- 
tion one  hundred  and  eighty-seven  of  this  chapter  on  an  in- 
surance corporation  shall  be  due  and  payable  into  the  state 
treasury  on  or  before  the  first  day  of  June  in  each  year. 
A  tax  imposed  by  section  one  hundred  and  eighty-seven-a 
or  one  hundred  and  eighty-seven-b  shall  be  due  and  pay- 
able into  the  state  treasury  on  or  before  the  first  day  of 
September  in  each  year.  A  tax  imposed  by  section  one 
hundred  and  eighty-eight  of  this  chapter  on  'a  foreign 
banker  shall  be  due  and  payable  into  the  state  treasury  on 
or  before  February  first  in  each  year.  If  such  tax  in  any 
case  is  not  paid  within  thirty  days  after  the  same  becomes 
due,  or  if  the  report  of  any  such  corporation  is  not  made 
within  the  time  required  by  this  article,  the  corporation, 
association,  joint  stock  company,  person  or  partnership,  lia- 
ble to  pay  the  tax,  shall  pay  into  the  state  treasury  in  addi- 
tion to  the  amount  of  such  tax,  a  sum  equal  to  five  per 
centum  thereof,  and  one  per  centum  additional  for  each 
month  the  tax  remains  unpaid,  which  sum  shall  be  added  to 
the  tax  and  paid  or  collected  therewith.  Every  corporation, 
association,  joint  stock  company,  person  or  partnership  fail- 
ing to  make  the  annual  report  required  by  this  article,  or 
failing  to  make  any  special  report  required  by  the  comptrol- 
ler, within  any  reasonable  time  to  be  specified  by  him,  shall 
forfeit  to  the  people  of  the  state  the  sum  of  one  hundred 
dollars  for  every  such  failure,  and  the  additional  sum  of  ten 
dollars  for  each  day  that  such  failure  continues.  Such  tax 
shall  be  a  lien  upon  and  bind  all  the  real  and  personal  prop- 
erty of  the  corporation,  joint  stock  company  or  association 
liable  to  pay  the  same  from  the  time  when  it  is  payable  until 
the  same  is  paid  in  full.  (Thus  amended  bp  L.  1901,  chap. 


THE  TAX  LAW.  103 

118,  taking  effect  October  1,  1901 ;  by  L.  1901,  chap.  132, 
taking  effect  March  21,  1901,  and  by  L.  1901,  chap.  558, 
taking  effect  April  26,  1901.) 

§  196.  Revision  and  readjustment  of  accounts  by  comptroller. — 
The  comptroller  may,  at  any  time  within  one  year  from  the  time  any 
such  account  shall  have  been  audited  and  stated,  and  notice  thereof  sent 
to  the  person,  partnership,  company,  association  or  corporation  against 
whom  it  is  stated,  revise  and  readjust  such  account  upon  application 
therefor  by  the  party  against  whom  the  account  is  stated  or  by  the  at- 
torney-general, and  if  it  shall  be  made  to  appear  upon  any  such  applica- 
tion by  evidence  submitted  to  him  or  otherwise,  that  any  such  account 
included  taxes  or  other  charges  which  could  not  have  been  lawfully  d> 
manded,  or  that  payment  has  been  legally  made  or  exacted  of  any  such 
account,  he  shall  resettle  the  same  according  to  law  and  the  facts  and 
charge  or  credit,  as  the  case  may  require,  the  difference,  if  any,  result- 
ing from  such  revision  or  resettlement  upon  the  accounts  for  taxes  of  or 
against  any  such  person,  partnership,  company,  association  or  corpora- 
tion. Such  credit,  whether  allowed  before  or  after  the  passage  of  this 
act,  may  be,  by  the  person,  partnership,  company,  association  or  corpora- 
tion in  whose  favor  it  is  allowed,  assigned  to  a  person,  partnership, 
company,  association  or  corporation  liable  to  pay  tares  under  article 
nine  of  this  act  and  the  assignee  of  the  whole  or  any  pait  of  such  credit 
on  filing  with  the  comptroller  such  assignment  shall  thereupon  be  en- 
titled to  credit  on  the  books  of  the  comptroller  for  the  amount  thereof 
on  the  current  account  for  taxes  of  such  assignee  in  the  same  way  and 
with  the  same  effect  as  though  the  credit  had  originally  been  allowed 
in  favor  of  such  assignee.  The  comptroller  shall  forthwith  send  writ- 
ten notice  of  his  determination  upon  such  application  to  the  applicant, 
and  to  the  attorney-general,  which  notice  may  be  sent  by  mail  to  his 
post-office  address.  (Thus  amended  ty  L.  1903,  chap.  642,  taking  effect 
May  22,  1903.) 

§  1&6.  Review  of  determination,  of  comptroller  by  certiorari. 

—  The  determination  of  the  comptroller  upon  any  applica- 
tion made  to  him  by  any  person,  partnership,  company,  as- 
sociation or  corporation  for  a  revision  and  resettlement  of 
any  account,  as  prescribed  in  this  article,  may  be  reviewed 
both  upon  the  law  and  the  facts,  upon  certiorari  by  the  su- 
preme court  at  the  instance  of  any  person,  partnership, 
company,  association  or  corporation  affected  thereby,  and 
in -the  name  and  on  behalf  of  the  people  of  the  state.  For 
the  purpose  of  such  review  the  comptroller  shall  return,  on 
such  certiorari,  the  accounts  and  all  the  evidence  before  him 
on  such  application,  and  all  the  papers  and  proofs  upon^the 
original  statement  of  such  account  and  all  proceeding's 
thereon.  If  the  original  or  resettled  accounts  shall  be  found 
erroneous  or  illegal,  either  in  point  of  law  or  of  fact,  by  the 
supreme  court,  upon  any  such  review,  the  accounts  reviewed 


104  THE  TAX  LAW. 

shall  then  be  corrected  and  restated,  and  from  any  determina- 
tion of  the  supreme  court  upon  any  such  review,  an  appeal 
to  the  court  of  appeals  may  be  taken  by  either  party. 

§  197.  Regulations  as  to  snch  writ  of  certiorari. —  No  cer- 
tiorari  to  review  any  audit  and  statement  of  an  account  or 
any  determination  by  the  comptroller  under  this  article,  shall 
be  granted  unless  notice  of  application  therefor  is  made 
within  thirty  days  after  the  service  of  the  notice  of  such  de- 
termination. Eight  days'  notice  shall  be  given  to  the  comp- 
troller of  the  application  for  such  writ.  The  full  amount 
of  the  taxes,  percentage,  interest  and  other  charges,  audited 
and  stated  in  such  account  must  be  deposited  with  the  state 
treasurer  before  making  the  application  and  an  undertaking 
filed  with  the  comptroller  in  such  amount  and  with  such 
sureties  as  a  justice  of  the  supreme  court  shall  approve  to 
the  effect  that  if  such  writ  is  dismissed  or  the  determination 
of  the  comptroller  affirmed,  the  applicant  for  the  writ  will 
pay  all  costs  and  charges  which  may  accrue  against  him,  or 
it  in  the  prosecution  of  the  writ,  including  costs  of  all  ap- 
peals. 

§  198.  Warrant  for  the  collection  of  taxes. —  After  the 
expiration  of  thirty  days  from  the  sending  by  the  comptrol- 
ler of  a  notice  of  a  statement  of  an  account  as  provided  in 
this  article,  unless  the  amount  of  such  account  shall  have  been 
paid  or  deposited  with  the  state  treasurer,  if  an  appeal  or 
other  proceedings  have  been  taken  to  review  the  same,  and 
the  undertaking  given  as  provided  in  this  article,  the  comp- 
troller may  issue  a  warrant  under  his  hand  and  official  seal, 
directed  to  the  sheriff  of  any  county  of  the  state,  command- 
ing him  to  levy  upon  and  sell  the  real  and  personal  property 
of  the  person,  partnership,  company,  association  or  corpora- 
tion against  which  such  account  is  stated,  found  within  his 
county  for  the  payment  of  the  amount  thereof  with  interest 
thereon  and  costs  of  executing  the  warrant,  and  to  return 
such  warrant  to  the  comptroller,  and  pay  to  the  state  treas- 
urer the  money  collected  by  virtue  thereof,  by  a  time  to  be 
therein  specified,  not  less  than  sixty  days  from  the  date  of 
the  warrant.  Such  warrant  shall  be  a  lien  upon  and  shall 
bind  the  real  and  personal  property  of  the  person,  partner- 


THE  TAX  LAW.  105 

ship,  company,  association  or  corporation  against  which  it 
is  issued,  from  the  time  an  actual  levy  shall  be  made  by  vir- 
tue thereof.  The  sheriff  to  whom  any  such  warrant  shall  be 
directed  shall  proceed  upon  the  same  in  all  respects,  with 
like  effect,  and  in  the  same  manner  as  prescribed  by  law  in 
respect  to  executions  issued  against  property  upon  judgments 
of  a  court  of  record,  and  shall  be  entitled  to  the  same  fees 
for  his  services  in  executing  the  warrant,  to  be  collected  in 
the  same  manner. 

§  199.  Information  of  delinquents. —  It  shall  be  the  duty  of 
any  person  having  knowledge  of  the  evasion  of  taxation  un- 
der this  article  by  any  corporation,  association,  joint-stock 
company,  partnership  or  person  liable  to  taxation  thereunder, 
for  any  omission  on  their  part  to  make  the  reports  required 
by  this  article,  to  make  a  written  report  thereof  to  the  comp- 
troller of  the  state,  with  such  information  as  may  be  in  his 
possession  as  may  lead  to  the  recovery  of  any  taxes  due  the 
state  therefrom.  If,  in  his  opinion,  the  interests  of  the  state 
require  it,  the  comptroller  may  employ  such  person  to  assist 
in  the  collection  and  preparation  of  evidence  and  in  the  pros- 
ecution and  trial  of  actions  for  such  taxes,  and  so  much  of 
the  same,  not  exceeding  ten  per  centum  thereof,  as  may  be 
collected  from  any  such  delinquent  corporation,  association, 
company,  partnership  or  person,  by  reason  of  such  report 
and  such  services,  as  shall  have  been  agreed  upon  between 
such  person  and  the  comptroller  or  attorney-general  as  a 
compensation  therefor,  shall  be  paid  to  such  person,  and 
nothing  shall  be  paid  to  such  person  for  such  report  or  ser- 
vices unless  there  shall  be  a  recovery  of  taxes  by  reason 
thereof. 

§  200.  Action  for  recovery  of  taxes;  forfeiture  of  charter 
of  delinquent  corporation. —  An  action  may  be  brought  by 
the  attorney-general,  at  the  instance  of  the  comptroller,  in 
the  name  of  the  state,  to  recover  the  amount  of  any  account 
audited  and  stated  by  the  comptroller  under  the  provisions 
of  this  article.  If  any  such  account  shall  remain  unpaid  at 
the  expiration  of  one  year  after  notice  of  the  statement 
thereof  has  been  sent  as  required  by  this  article,  and  the 


106  THE  TAX  LAW. 

< 

comptroller  is  satisfied  that  the  failure  to  pay  the  same  is 
intentional,  he  shall  so  report  to  the  attorney-general,  who 
shall  immediately  bring  an  action,  in  the  name  of  the  peo- 
ple of  the  state,  for  the  forfeiture  of  the  franchise  of  any 
corporation,  joint-stock  company  or  association  failing  to 
make  such  payment,  and  if  it  is  found  that  such  failure  was 
intentional,  judgment  shall  be  rendered  in  such  action  for 
the  forfeiture  of  its  franchise  and  for  its  dissolution,  and 
thereafter  such  franchise  shall  be  annulled. 

§  201.  Reports  to  be  made  by  the  secretary  of  state. —  The 
secretary  of  state  shall  transmit  on  the  first  day  of  each 
month,  to  the  comptroller,  a  report  of  the  stock  corporations 
whose  certificates  of  incorporation  are  filed,  or  of  the  foreign 
stock  corporations  to  whom  a  certificate  of  authority  has  been 
issued  to  do  business  in  this  state,  during  the  preceding 
month.  Such  report  shall  state  the  name  of  the  corporation, 
its  place  of  business,  the  amount  of  its  capital  stock,  its  pur- 
poses or  objects,  the  names  and  places  of  residence  of  its 
directors,  and,  if  a  foreign  corporation,  its  place  of  business 
within  the  state.  The  comptroller  may  prescribe  the  forms 
and  furnish  the  blanks  for  such  reports.  The  secretary  of 
state  shall  make  like  reports  to  the  comptroller  whenever  re- 
quired by  him  relating  to  any  such  corporations  whose  cer- 
tificates have  been  filed  or  to  whom  a  certificate  of  authority 
has  been  issued  prior  to  the  time  when  this  article  takes 
effect,  and  during  any  period  of  time  specified  by  the  comp- 
troller in  his  request  for  such  report. 

§  202.  Exemptions  from  other  state  taxation. —  The  per- 
sonal property  of  every  corporation,  company,  association  or 
partnership,  taxable  under  this  article,  other  than  for  an  or- 
ganization tax,  shall  be  exempt  from  assessment  and  taxation 
upon  its  personal  property  for  state  purposes,  and  the  per- 
sonal property  of  every  corporation  taxable  under  section  one 
hundred  and  eighty-seven-a  of  this  article,  other  than  for  an 
organization  tax,  and  as  provided  in  chapter  thirty-seven  of 
the  general  laws,  shall  be  exempt  from  assessment  and  taxa- 
tion for  all  other  purposes,  if  all  taxes  due  and  payable  under 
this  article  have  been  paid  thereby.  The  personal  property 
of  a  private  or  individual  banker,  actually  employed  in  his 


THE  TAX  LAW.  107 

business  as  such  banker,  shall  be  exempt  from  taxation  for 
state  purposes,  if  such  private  or  individual  banker  shall 
have  paid  all  taxes  due  and  payable  under  this  article.  Such 
corporation  and  private  or  individual  banker  shall  in  no 
other  respect  be  relieved  from  assessment  and  taxation  by 
reason  of  the  provisions  of  this  article.  The  owner  and 
holder  of  stock  in  an  incorporated  trust  company  liable  to 
taxation  under  the  provisions  of  this  act  shall  not  be  taxed 
as  an  individual  for  such  stock.  (Thus  amended  by  L.  1901,, 
chap.  132,  and  L.  1902,  chap.  172,  in  effect  April  6,  1902.) 

§  203.  Application  of  taxes. —  The  taxes  imposed  by  this 
article  and  the  revenues  thereof  shall  be  applicable  to  the 
general  fund  of  the  treasury  and  to  the  payment  of  all 
claims  and  demands  which  are  a  lawful  charge  thereon. 


108  THE  TAX  LAW. 


ARTICLE  X. 
TAXABLE  TRANSFERS. 

(Entire  article  amended  by  L.  1905,  chap.  368,  to  read  as  follows,  in 
effect  June  1,  1905. ) 

Section  220.  Taxable  transfers. 

221.  Exceptions  and  limitations. 

222.  Accrual  and  payment  of  tax. 

223.  Discount  and  interest. 

224.  Lien  of  tax  and  collection  by  executors,  administrators 

and  trustees. 

225.  Refund  of  tax  erroneously  paid. 

226.  Taxes  upon  devises  and  bequests  in  lieu  of  commissions. 

227.  Liability  of  certain  corporations  to  tax. 

228.  Jurisdiction  of  the  surrogate. 

229.  Appointment  of  appraisers,   stenographers,  et  cetera. 

230.  Proceedings  by  appraiser. 

231.  Determination  of  surrogate. 

232.  Appeal  and  other  proceedings. 

233.  Composition  of  transfer  tax  upon  certain  estates. 

234.  Surrogate's   assistants    in    New   York,    Kings    and   other 

counties. 

235.  Proceedings  by  district  attorneys. 

236.  Receipt  from  county  treasurer  or  comptroller. 

237.  Fees  of  county  treasurer. 

238.  Books  and  forms  to  be  furnished  by  the  state  comptroller. 

239.  Reports  of  surrogate  and  county  clerk. 

240.  Reports  of  county  treasurer. 

240-a.     Report  of  state  comptroller;   payment  of  taxes. 

241.  Application  of  taxes. 

242.  Definitions. 

243.  Exemptions  in  article  one  not  applicable. 

Section  220.  Taxable  transfers. —  A  tax  shall  be  and  is 
hereby  imposed  upon  the  transfer  of  any  property,  real  or  per- 
sonal, of  the  value  of  five  hundred  dollars  or  over,  or  of  any 
interest  therein  or  income  therefrom,  in  trust  or  otherwise,  to 
persons  or  corporations  not  exempt  by  law  from  taxation  on 
real  or  personal  property,  in  the  following  cases: 


THE  TAX  LAW.  109 

1.  When  the  transfer  is  by  will  or  by  the  intestate  laws  of 
this  state  from  any  person  dying  seized  or  possessed  of  the  prop- 
erty while  a  resident  of  the  state. 

2.  When  the  transfer  is  by  will  or  intestate  law,  of  property 
within  the  state,  and  the  decedent  was  a  nonresident  of  the 
state  at  the  time  of  his  death. 

3.  When  the  transfer  is  of  property  made  by  a  resident  or  by 
a  nonresident  when  such  nonresident's  property  is  within  this 
state,  by  deed,  grant,  bargain,  sale  or  gift  made  in  contempla- 
tion of  the  death  of  the  grantor,  vendor  or  donor,  or  intended 
to  take  effect  in  possession  or  enjoyment  at  or  after  such  death. 

4.  When  any  such  person  or  corporation  becomes  beneficially 
entitled,  in  possession  or  expectancy,  to  any  property  or  the 
income  thereof  by  any  such  transfer,  whether  made  before  or 
after  the  passage  of  this  act. 

5.  Whenever  any  person  or  corporation  shall  exercise  a  power 
of  appointment  derived  from  any  disposition  of  property  made 
either  before  or  after  the  passage  of  this  act,  such  appointment 
when  made  shall  be  deemed  a  transfer  taxable  under  the  pro- 
visions of  this  act  in  the  same  manner  as  though  the  property 
to  which  such  appointment  relates  belonged  absolutely  to  the 
donee  of  such  power  and  had  been  bequeathed  or  devised  by 
such  donee  by  will ;  and  whenever  any  person  or  corporation 
possessing  such  a  power  of  appointment  so  derived  shall  omit 
or  fail  to  exercise  the  same  within  the  time  provided  therefor, 
in  whole  or  in  part,  a  transfer  taxable  under  the  provisions  of 
this  act  shall  be  deemed  to  take  place  to  the  extent  of  such 
omission  or  failure,  in  the  same  manner  as  though  the  persons 
or  corporations  thereby  becoming  entitled  to  the  possession  or 
enjoyment  of  the  property  to  which  such  power  related  had  suc- 
ceeded thereto  by  a  will  of  the  donee  of  the  power  failing  to 
exercise  such  power,  taking  effect  at  the  time  of  such  omission 
or  failure. 

6.  The  tax  imposed  hereby  shall  be  at  the  rate  of  five  per 
centum  upon  the  clear  market  value  of  such  property,  except 


110  THE  TAX  LAW. 

as  otherwise  prescribed  in  the  next  section.     (Thus  amended 
by  L.  1905,  chap.  368,  in  effect  June  1,  1905.) 

§  221.  Exceptions  and  limitations. —  When  property  real  or 
personal  or  any  beneficial. interest  therein,  of  the  value  of  less 
than  ten  thousand  dollars,  .passes  by  any  such  transfer  to  or 
for  the  use  of  any  father,  mother,  husband,  wife,  child,  brother, 
sister,  wife  or  widow  of  a  son  or  the  husband  of  a  daughter,  or 
any  child  or  children  adopted  as  such  in  conformity  with  the 
laws  of  this  state,  of  the  decedent,  grantor,  donor  or  vendor,  or 
to  any  child  to  whom  any  such  decedent,  grantor,  donor  or 
vendor  for  not  less  than  ten  years  prior  to  such  transfer  stood 
in  the  mutually  acknowledged  relation  of  a  parent,  provided, 
however,  such  relationship  began  at  or  before  the  child's 
fifteenth  birthday  and  was  continuous  for  said  ten  years  there- 
after, and  provided  also  that  the  parents  of  such  child  shall  be 
deceased  when  such  relationship  commenced,  or  to  any  lineal 
descendant  of  such  decedent,  grantor,  donor  or  vendor  born  in 
lawful  wedlock,  such  transfer  of  property  shall  not  be  taxable 
under  this  act;  if  real  or  personal  property,  or  any  beneficial 
interest  therein,  so  transferred  is  of  the  value  of  ten  thousand 
dollars  or  more,  it  shall  be  taxable  under  this  act  at  the  rate  of 
one  percentum  upon  the  clear  market  value  of  such  property. 
But  any  property  devised  or  bequeathed  to  any  person  who  is  a 
bishop  or  to  any  religious,  educational,  charitable,  missionary, 
benevolent,  hospital  or  infirmary  corporation  including  corpora- 
tions organized  exclusively  for  bible  or  tract  purposes  shall  be 
exempted  from  and  not  subject  to  the  provisions  of  this  act. 
There  shall  also  be  exempted  from  and  not  subject  to  the  pro- 
visions of  this  act  personal  property  other  than  money  or 
securities  bequeathed  to  a  corporation  or  association  organized 
exclusively  for  the  moral  or  mental  improvement  of  men  or 
women  or  for  scientific,  literary,  library,  patriotic,  cemetery  or 
historical  purposes  or  for  the  enforcement  of  laws  relating  to 
children  or  animals  or  for  two  or  more  of  such  purposes  and 
used  exclusively  for  carrying  out  one  or  more  of  such  purposes. 
But  no  such  corporation  or  association  shall  be  entitled  to  such 
exemption  if  any  officer,  member,  or  employee  thereof  shall 
receive  or  may  be  lawfully  entitled  to  receive  any  pecuniary 


THE  TAX  LAW.  Ill 

profit  from  the  operations  thereof  except  reasonable  compensa- 
tion for  services  in  effecting  one  or  more  of  such  purposes  or 
as  proper  beneficiaries  of  its  strictly  charitable  purposes;  or  if 
t/ie  organization  thereof  for  any  such  avowed  purpose  be  a  guise 
or  pretense  for  directly  or  indirectly  making  any  other  pe- 
cuniary profit  for  such  corporation  or  association  or  for  any 
of  its  members  or  employees  or  if  it  be  not  in  good  faith  or- 
ganized or  conducted  exclusively  for  one  or  more  of  such  pur- 
poses. (Thus  amended  ~by  L.  1905,  ch.  368,  in  effect  June  1, 
1905.) 

§  222.  Accrual  and  payment  of  tax. —  All  taxes  imposed  by 
this  article  shall  be  due  and  payable  at  the  time  of  the  transfer, 
except  as  herein  otherwise  provided.  Taxes  upon  the  transfsr 
of  any  estate,  property  or  interest  therein  limited,  conditioned, 
dependent  or  determinable  upon  the  happening  of  any  contin- 
gency or  future  event  by  reason  of  which  the  fair  market  value 
thereof  cannot  be  ascertained  at  the  time  of  the  transfer  as 
herein  provided,  shall  accrue  and  become  due  and  payable  when 
the  persons  or  corporations  beneficially  entitled  thereto  shall 
come  into  actual  possession  or  enjoyment  thereof.  Such  tax 
shall  be  paid  to  the  state  comptroller  in  a  county  in  which  the 
office  of  appraiser  is  salaried,  and  in  other  counties,  to  the 
county  treasurer,  and  said  state  comptroller  or  county  treasurer 
shall  give,  and  every  executor,  administrator  or  trustee  shall 
take,  duplicate  receipts  from  him  of  such  payment  as  provided 
in  section  two  hundred  and  thirty-six.  (Thus  amended  by  L. 
1905,  chap.  368,  in  effect  June  1,  1905.) 

§  223.  Discount,  and  interest. —  If  such  tax  is  paid  within 
six  months  from  the  accrual  thereof,  a  discount  of  five  per 
centum  shall  be  allowed  and  deducted  therefrom.  If  such  tax 
is  not  paid  within  eighteen  months  from  the  accrual  thereof, 
interest  shall  be  charged  and  collected  thereon  at  the  rate  of 
ten  per  centum  per  annum  from  the  time  the  tax  accrued; 
unless  by  reason  of  claims  made  upon  the  estate,  necessary 
litigation  or  other  unavoidable  cause  of  delay,  such  tax  can 
not  be  determined  and  paid  as  herein  provided,  in  which  case 
interest  at  the  rate  of  six  per  centum  per  annum  shall  be 
charged  upon  such  tax  from  the  accrual  thereof  until  the  cause 


112  THE  TAX  LAW. 

of  such  delay  is  removed,  after  which  ten  per  centum  shall  be 
charged.  (Thus  amended  by  L.  1905,  chap.  368,  in  effect  June 
1,  1905.) 

§  224.  Lien  of  tax  and  collection  by  executors,  administra- 
tors and  trustees. —  Every  such  tax  shall  be  and  remain  a  lien 
upon  the  property  transferred  until  paid  and  the  person  to 
whom  the  property  is  so  transferred,  and  the  executors,  admin- 
istrators and  trustees  of  every  estate  so  transferred  shall  be 
personally  liable  for  such  tax  until  its  payment.  Every  execu- 
tor, administrator  or  trustee,  shall  have  full  power  to  sell  so 
much  of  the  property  of  the  decedent  as  will  enable  him  to  pay 
such  tax  in  the  same  manner  as  he  might  be  entitled  by  law 
to  do  for  the  payment  of  the  debts  of  the  testator  or  intestate. 
Any  such  executor,  administrator  or  trustee  having  in  charge 
or  in  trust  any  legacy  or  property  for  distribution  subject  to 
such  tax  shall  deduct  the  tax  therefrom  and  shall  pay  over  the 
same  to  the  state  comptroller  or  county  treasurer,  as  herein 
provided.  If  such  legacy  or  property  be  not  in  money,  he  shall 
collect  the  tax  thereon  upon  the  appraised  value  thereof  from 
the  person  entitled  thereto.  He  shall  not  deliver  or  be  com- 
pelled to  deliver  any  specific  legacy  or  property  subject  to  tax 
under  this  article  to  any  person  until  he  shall  have  collected 
the  tax  thereon.  If  any  such  legacy  shall  be  charged  upon  or 
payable  out  of  real  property,  the  heir  or  devisee  shall  deduct 
such  tax  therefrom  and  pay  it  to  the  executor,  administrator  or 
trustee,  and  the  tax  shall  remain  a  lien  or  charge  on  such  real 
property  until  paid;  and  the  payment  thereof  shall  be  enforced 
by  the  executor,  administrator  or  trustee  in  the  same  manner 
that  payment  of  the  legacy  might  be  enforced,  or  by  the  district 
attorney  under  section  two  hundred  and  thirty-five  of  this  chap- 
ter. If  any  such  legacy  shall  be  given  in  money  to  any  such 
person  for  a  limited  period,  the  executor,  administrator  or 
trustee  shall  retain  the  tax  upon  the  whole  amount,  but  if  it 
be  not  in  money,  he  shall  make  application  to  the  court  having 
jurisdiction  of  an  accounting  by  him,  to  make  an  apportion- 
ment, if  the  case  require  it,  of  the  sum  to  be  paid  into  his 
hands  by  such  legatees,  and  for  such  further  order  relative 


THE  TAX  LAW.  113 

thereto  as  the  case  may  require.     (Thus  amended  by  L.  1905, 
chap.  368,  in  effect  June  1,  1905.) 

§  225.  Refund  of  tax  erroneously  paid. —  If  any  debts  shall 
be  proven  against  the  estate  of  a  decedent  after  the  payment  of 
any  legacy  or  distributive  share  thereof,  from  which  any  such 
tax  has  been  deducted  or  upon  which  it  has  been  paid  by  the 
person  entitled  to  such  legacy  or  distributive  share,  and  such 
person  is  required  by  order  of  the  surrogate  having  jurisdiction, 
on  notice  to  the  state  comptroller,  to  refund  the  amount  of  such 
debts  or  any  part  thereof,  an  equitable  proportion  of  the  tax 
shall  be  repaid  to  him  by  the  executor,  administrator  or  trustee, 
if  the  tax  has  not  been  paid  to  the  state  comptroller  or  county 
treasurer ;  or  if  such  tax  has  been  paid  to  such  state  comptroller 
or  county  treasurer,  such  officer  shall  refund  out  of  the  funds 
in  his  hands  or  custody  to  the  credit  of  such  taxes  such  equi- 
table proportion  of  the  tax,  and  credit  himself  with  the  same 
in  the  account  required  to  be  rendered  by  him  under  this 
article.  If  after  the  payment  of  any  tax  in  pursuance  of  an 
order  fixing  such  tax,  made  by  the  surrogate  having  jurisdic- 
tion, such  order  be  modified  or  reversed  within  two  years  from 
and  after  the  date  of  entry  of  the  order  fixing  the  tax,  on  due 
notice  to  the  state  comptroller,  the  state  comptroller  shall,  if 
such  tax  was  paid  in  a  county  in  which  the  office  of  appraiser 
is  salaried,  refund  to  the  executor,  administrator,  trustee,  per- 
son or  persons  by  whom  such  tax  has  been  paid,  the  amount  of 
any  moneys  paid  or  deposited  on  account  of  such  tax  in  excess 
of  the  amount  of  the  tax  fixed  by  the  order  modified  or  reversed, 
out  of  the  funds  in  his  hands  or  custody  to  the  credit  of  such 
taxes,  and  to  credit  himself  with  the  same  in  the  account  re- 
quired to  be  rendered  ,by  him  under  this  act,  or  if  paid  in  a 
county  in  which  the  office  of  appraiser  is  not  salaried,  he  shall 
by  warrant  direct  and  allow  the  county  treasurer  of  the  county 
to  refund  such  amount  in  the  same  manner;  but  no  application 
for  such  refund  shall  be  made  after  one  year  from  such  reversal 
or  modification,  and  the  state  comptroller  shall  deduct  from  the 
fees  allowed  by  this  article  to  the  county  treasurer  the  amount 
theretofore  allowed  him  upon  such  overpayment.  Where  it 
shall  be  proved  to  the  satisfaction  of  the  surrogate  that  de- 


114  THE  TAX  LAW. 

ductions  for  debts  were  allowed  upon  the  appraisal,  since  proved 
to  have  been  erroneously  allowed,  it  shall  be  lawful  for  such 
surrogate  to  enter  an  order  assessing  the  tax  upon  the  amount 
wrongfully  or  erroneously  deducted.  (Thus  amended  by  L. 
1905,  chap.  368,  in  effect  June  1,  1905.) 

§  226.  Taxes  upon  devises  and  bequests  in  lieu  of  commis- 
sions.—  If  a  testator  bequeaths  or  devises  property  to  one  or 
more  executors  or  trustees  in  lieu  of  their  commissions  or  allow- 
ances, or  makes  them  his  legatees  to  an  amount  exceeding  the 
•jommissions  or  allowances  prescribed  by  law  for  an  executor  or 
trustee,  the  excess  in  value  of  the  property  so  bequeathed  or 
devised,  above  the  amount  of  commissions  or  allowances  pre- 
scribed by  law  in  similar  cases  shall  be  taxable  under  this 
article.  (Thus  amended  l>y  L.  1905,  chap.  368,  in  effect  June 
1,  1905.) 

§  227.  Liability  of  certain  corporations  to  tax.— If  a  foreign 
executor,  administrator  or  trustee  shall  assign  or  transfer  any 
stock  or  obligations  in  this  state  standing  in  the  name  of  a 
decedent,  or  in  trust  for  a  decedent,  liable  to  any  such  tax,  the 
tax  shall  be  paid  to  the  state  comptroller  or  the  treasurer  of 
the  proper  county  on  the  transfer  thereof.  No  safe  deposit  com- 
pany, trust  company,  corporation,  bank  or  other  institution,  per- 
son or  persons  having  in  possession  or  under  control  securities, 
deposits,  or  other  assets  belonging  to  or  standing  in  the  name 
of  a  decedent  who  was  a  resident  or  nonresident,  or  belonging 
to,  or  standing  in  the  joint  names  of  such  a  decedent  and  one 
or  more  persons,  including  the  shares  of  the  capital  stock  of, 
or  other  interests  in,  the  safe  deposit  company,  trust  company, 
corporation,  bank  or  other  institution  making  the  delivery  or 
transfer  herein  provided,  shall  deliver  or  transfer  the  same  to 
the  executors,  administrators  or  legal  representatives  of  said  de- 
cedent, or  to  the  survivor  or  survivors  when  held  in  the  joint 
names  of  a  decedent  and  one  or  more  persons,  or  upon  their 
order  or  request,  unless  notice  of  the  time  and  place  of  such 
intended  delivery  or  transfer  be  served  upon  the  state  comp- 
troller at  least  ten  days  prior  to  said  delivery  or  transfer;  nor 
shall  any  such  safe  deposit  company,  trust  company,  corpora- 


THE  TAX  LAW.  115 

tion,  bank  or  other  institution,  person  or  persons  deliver  or 
transfer  any  securities,  deposits  or  other  assets  belonging  to  or 
standing  in  the  name  of  a  decedent,  or  belonging  to,  or  stand- 
ing in  the  joint  names  of  a  decedent  and  one  or  more  persons, 
including  the  shares  of  the  capital  stock  of,  or  other  interests 
in,  the  safe  deposit  company,  trust  company,  corporation,  bank 
or  other  institution  making  the  delivery  or  transfer,  without 
retaining  a  sufficient  portion  or  amount  thereof  to  pay  any  tax 
and  interest  which  may  thereafter  be  assessed  on  account  of 
the  delivery  or  transfer  of  such  securities,  deposits  or  other 
assets,  including  the  shares  of  the  capital  stock  of,  or  other  in- 
terests in,  the  safe  deposit  company,  trust  company,  corporation, 
bank  or  other  institution  making  the  delivery  or  transfer,  under 
the  provisions  of  this  article,  unless  the  state  comptroller  con- 
sents thereto  in  writing.  And  it  shall  be  lawful  for  the  said 
state  comptroller,  personally  or  by  representative,  to  examine 
said  securities,  deposits  or  assets  at  the  time  'of  such  delivery 
or  transfer.  Failure  to  serve  such  notice  or  failure  to  allow  such 
examination,  or  failure  to  retain  a  sufficient  portion  or  amount 
to  pay  such  tax  and  interest  as  herein  provided  shall  render  said 
safe  deposit  .company,  trust  company,  corporation,  bank  or 
other  institution,  person  or  persons  liable  to  the  payment  of  the 
amount  of  the  tax  and  interest  due  or  thereafter  to  become  due 
upon  said  securities,  deposits  or  other  assets,  -including  the 
shares  of  the  capital  stock  of,  or  other  interests  in,  the  safe  de- 
posit company,  trust  company,  corporation,  bank  or  other  insti- 
tution making  the  delivery  or  transfer,  and  in  addition  thereto, 
a  penalty  of  one  thousand  dollars ;  and  the  payment  of  such  tax 
and  interest  thereon,  or  of  the  penalty  above  prescribed,  or  both, 
may  be  enforced  in  an  action  brought  by  the  state  comptroller 
in  any  court  of  competent  jurisdiction.  (Thus  amended  by  L. 
1905,  chap.  368,  in  effect  June  1,  1905.) 

§  228.  Jurisdiction  of  the  surrogate. —  The  surrogate's  court 
of  every  county  of  the  state  having  jurisdiction  to  grant  letters 
testamentary  or  of  administration  upon  the  estate  of  a  deced- 
ent whose  property  is  chargeable  with  any  tax  under  this  article, 
or  to  appoint  a  trustee  of  such  estate  or  any  part  thereof,  or  to 
give  ancillary  letters  thereon,  shall  have  jurisdiction  to  hear 


116  THE  TAX  LAW. 

and  determine  all  questions  arising  under  the  provisions  of  this 
article,  and  to  do  any  act  in  relation  thereto  authorized  by  law 
to  be  done  by  a  surrogate  in  other  matters  or  proceedings  com- 
ing within  his  jurisdiction;  and  if  two  or  more  surrogate's 
courts  shall  be  entitled  to  exercise  any  such  jurisdiction,  the 
surrogate  first  acquiring  jurisdiction  hereunder  shall  retain  the 
same  to  the  exclusion  of  every  other  surrogate.  Every  petition 
for  ancillary  letters  testamentary  or  ancillary  letters  of  admin- 
istration made  in  pursuance  of  the  provisions  of  article  seven, 
title  three,  chapter  eighteen  of  the  code  of  civil  procedure  shall 
set  forth  the  name  of  the  state  comptroller  as  a  person  to  be 
cited  as  herein  prescribed,  and  a  true  and  correct  statement  of 
all  the  decedent's  property  in  this  state  and  the  value  thereof; 
and  upon  the  presentation  thereof  the  surrogate  shall  issue  a 
citation  directed  to  the  state  comptroller;  and  upon  the  return 
of  the  citation  the  surrogate  shall  determine  the  amount  of  the 
tax  which  may  be  or  become  due  under  the  provisjons  of  this 
article  and  his  decree  awarding  the  letters  may  contain  any 
provision  for  the  payment  of  such  tax  or  the  giving  of  security 
therefor  which  might  be  made  by  such  surrogate  if  the  state 
comptroller  were  a  creditor  of  the  decedent.  (Thus  amended 
ly  L.  1905,  chap.  368,  in  effect  June  1,  1905.) 

§  229.  Appointment  of  appraisers,  stenographers,  et  cetera. 
—  The  state  comptroller  shall  appoint  and  may  at  pleasure  re- 
move not  to  exceed  six  persons  in  the  county  of  New  York;  two 
persons  in  the  county  of  Kings,  and  one  person  in  the  counties 
of  Albany,  Dutchess,  Erie,  Monroe,  Oneida,  Onondaga,  Orange, 
Queens,  Eensselaer,  Richmond,  Suffolk  and  Westchester,  to  act 
as  appraisers  therein.  The  appraisers  so  appointed  shall  re- 
ceive an  annual  salary  to  be  fixed  by  the  state  comptroller,  to- 
gether with  their  actual  and  necessary  traveling  expenses  and 
witness  fees,  as  hereinafter  provided,  payable  monthly  by  the 
state  comptroller  out  of  any  funds  in  his  hands  or  custody  on 
account  of  transfer  tax.  The  salaries  of  each  of  the  appraisers 
so  appointed  shall  not  exceed  the  following  amounts:  In  Xew 
York  county,  four  thousand  dollars;  in  Kings  county,  four 
thousand  dollars;  in  Erie  county,  three  thousand  dollars;  in 
Westchester  and  Albany  counties^,  twenty-five  hundred  dollars; 


THE  TAX  LAW.  117 

in  Queens,  Monroe  and  Onondaga  counties,  one  thousand  five 
hundred  dollars;  in  Dutchess,  Oneida,  Orange,  Rensselaer  and 
Suffolk  counties,  one  thousand  dollars,  and  in  Richmond  county, 
five  hundred  dollars.  Each  of  the  said  appraisers  shall  file 
with  the  state  comptroller  his  oath  of  office  and  his  official  bond 
in  the  penal  sum  of  not  less  than  one  thousand  dollars,  in  the 
discretion  of  the  state  comptroller,  conditioned  for  the  faithful 
performance  of  his  duties  as  such  appraiser,  which  bond  shall 
be  approved  by  the  attorney-general  and  the  state  comptroller. 
The  state  comptroller  shall  retain  out  of  any  funds  in  his  hands 
on  account  of  said  tax  the  following  amounts:  First.  A  sum 
sufficient  to  provide  the  appraisers  of  New  York  county  with 
five  stenographers,  of  Kings  county  with  two  stenographers,  and 
of  Erie  county  with  one  clerk,  appointed  by  the  state  comp- 
troller, whose  salary  shall  not  exceed  fifteen  hundred  dollars 
a  year  each.  Second.  A  sum  to  be  used  in  defraying  the  ex- 
penses for  office  rent,  stationery,  postage,  process  serving,  et 
cetera,  necessarily  incurred  in  the  appraisal  of  estates,  not  ex- 
ceeding seven  thousand  five  hundred  dollars  a  year  in  New  York 
county,  and  one  thousand  five  hundred  dollars  a  year  in  Kings 
county.  (Thus  amended  by  L.  1905,  chap.  368,  in  effect  June 
1,  1905,  and  L.  1906,  chap.  567,  talcing  effect  May  23,  1906.) 

§  230.  Proceedings  by  appraiser. —  In  each  county  in  which 
the  office  of  appraiser  is  not  salaried  the  county  treasurer  shall 
act  as  appraiser.  The  surrogate,  either  upon  his  own  motion, 
or  upon  the  application  of  any  interested  person,  including  the 
state  comptroller,  shall  by  order  direct  the  person  or  one  of  the 
persons  appointed  pursuant  to  section  two  hundred  and  twenty- 
nine  of  this  article  in  counties  in  which  the  office  of  appraiser 
is  salaried,  and  in  other  counties,  the  county  treasurer,  to  fix 
the  fair  market  value  of  property  of  persons  whose  estates  shall 
be  subject  to  the  payment  of  any  tax  imposed  by  this  article. 

Every  such  appraiser  shall  forthwith  give  notice  by  mail  to 
all  persons  known  to  have  a  claim  or  interest  in  the  property  to 
be  appraised,  including  the  state  comptroller,  and  to  such  per- 
sons as  the  surrogate  may  by  order  direct,  of  the  time  and  place 
when  he  will  appraise  such  property.  He  shall  at  such  time  and 
place,  appraise  the  same  at  its  fair  market  value  as  herein 
prescribed;  and  for  that  purpose  the  said  appraiser  is  author- 


118  THE  TAX  LAW. 

ized  to  issue  subpoenas  and  to  compel  the  attendance  of  wit- 
nesses before  him  and  to  take  the  evidence  of  such  wit- 
nesses under  oath  concerning  such  property  and  the  value 
thereof;  and  he  shall  make  report  thereof  and  of  such  value 
in  writing,  to  the  said  surrogate,  together  with  the  depositions 
of  the  witnesses  examined,  and  such  other  facts  in  relation 
thereto  and  to  said  matter  as  the  surrogate  may  order  or  require. 
Every  appraiser,  except  in  the  counties  in  which  the  office  of 
appraiser  is  salaried,  for  which  provision  is  hereinbefore  made, 
shall  be  paid  by  the  state  comptroller  and  after  the  audit  of 
said  state  comptroller,  his  actual  and  necessary  traveling  ex- 
penses and  the  fees  paid  such  witnesses,  which  fees  shall  be  the 
same  as  those  now  paid  to  witnesses  subpoenaed  to  attend  in 
courts  of  record,  payment  to  be  made  out  of  funds  in  the  hands 
of  the  county  treasurer  of  the  proper  county  on  account  of  the 
tax  imposed  under  the  provisions  of  this  article.  Appraisers 
appointed  under  this  article  in  proceedings  pending  at  the  time 
the  amendment  to  this  section  takes  effect  shall  complete  the 
appraisals  therein  and  file  their  reports  as  herein  provided,  and 
shall  be  entitled  to  the  compensation  authorized  by  law  at  the 
time  of  their  appointment,  to  be  paid  by  the  state  comptroller 
in  counties  in  which  the  office  of  appraiser  is  salaried,  and  in 
other  counties  by  the  county  treasurer,  out  of  any  moneys  in 
his  hands  on  account  of  this  tax. 

The  value  of  every  future  or  limited  estate,  income,  interest 
or  annuity  dependent  upon  any  life  or  lives  in  being,  shall  be 
determined  by  the  rule,  method  and  standard  of  mortality  and 
value  employed  by  the  superintendent  of  insurance  in  ascertain- 
ing the  value  of  policies  of  life  insurance  and  annuities  for  the 
determination  of  liabilities  of  life  insurance  companies,  except 
that  the  rate  of  interest  for  making  such  computation  shall  be 
five  per  centum  per  annum. 

In  estimating  the  value  of  any  estate  or  interest  in  property, 
to  the  beneficial  enjoyment  or  possession  whereof  there  are  per- 
sons or  corporations  presently  entitled  thereto,  no  allowance 
shall  be  made  on  account  of  any  contingent  incumbrance  there 
on,  nor  on  account  of  any  contingency  upon  the  happening  of 
which  the  estate  or  property  or  some  part  thereof  or  interest 
therein  might  be  abridged,  defeated  or  diminished;  provided, 


THE  TAX  LAW.  119 

however,  that  in  the  event  of  such  incumbrance  taking  effect  as 
an  actual  burden  upon  the  interest  of  the  beneficiary,  or  in  the 
event  of  the  abridgment,  defeat  or  diminution  of  said  estate  or 
property  or  interest  therein  as  aforesaid,  a  return  shall  be  made 
to  the  person  properly  entitled  thereto  of  a  proportionate 
amount  of  such  tax  on  account  of  the  incumbrance  when  taking 
effect,  or  so  much  as  will  reduce  the  same  to  the  amount  which 
would  have  been  assessed  on  account  of  the  actual  duration  or 
extent  of  the  estate  or  interest  enjoyed.  Such  return  of  tax 
shall  be  made  in  the  manner  provided  by  section  two  hundred 
and  twenty-five  of  this  article. 

Where  any  property  shall,  after  the  passage  of  this  act,  be 
transferred  subject  to  any  charge,  estate  or  interest,  determin- 
able  by  the  death  of  any  person,  or  at  any  period  ascertainable 
only  by  reference  to  death,  the  increase  accruing  to  any  person 
or  corporation  upon  the  extinction  or  determination  of  such 
charge,  estate  or  interest,  shall  be  deemed  a  transfer  of  prop- 
erty taxable  under  the  provisions  of  this  act  in  the  same  manner 
as  though  the  person  or  corporation  beneficially  entitled  thereto 
had  then  acquired  such  increase  from  the  person  from  whom 
the  title  to  their  respective  estates  or  interests  is  derived. 

When  property  is  transferred  in  trust  or  otherwise,  and  the 
rights,  interest  or  estates  of  the  transferees  are  dependent  upon 
contingencies  or  conditions  whereby  they  may  be  wholly  or  in 
part  created,  defeated,  extended  or  abridged,  a  tax  shall  be 
imposed  upon  said  transfer  at  the  highest  rate  which,  on  the 
happening  of  any  of  the  said  contingencies  or  conditions,  would 
be  possible  under  the  provisions  of  this  article,  and  such  tax 
so  imposed  shall  be  due  and  payable  forthwith  by  the  executors 
or  trustees  out  of  the  property  transferred;  provided,  however, 
that  on  the  happening  of  any  contingency  whereby  the  said 
property,  or  any  part  thereof,  is  transferred  to  a  person  or 
corporation  exempt  from  taxation  under  the  provisions  of  this 
article,  or  to  any  person  taxable  at  a  rate  less  than  the  rate  im- 
posed and  paid,  such  person  or  corporation  shall  be  entitled  to 
a  return  of  so  much  of  the  tax  imposed  and  paid  as  is  the  differ- 
ence between  the  amount  paid  and  the  amount  which  said  per- 
son or  corporation  should  pay  under  the  provisions  of  this 
article,  with  interest  thereon  at  the  rate  of  three  per  centum 


120  THE  TAX  LAW. 

per  annum  from  the  time  of  payment.  Such  return  of  overpay- 
ment shall  be  made  in  the  manner  provided  by  section  two 
hundred  and  twenty-five  of  this  article. 

Estates  in  expectancy  which  are  contingent  or  defeasible  and 
in  which  proceedings  for  the  determination  of  the  tax  have  not 
been  taken  or  where  the  taxation  thereof  has  been  held  in  abey- 
ance, shall  be  appraised  at  their  full,  undiminished  value  when 
the  persons  entitled  thereto  shall  come  into  the  beneficial  en- 
joyment or  possession  thereof,  without  diminution  for  or  on 
account  of  any  valuation  theretofore  made  of  the  particular 
estates  for  purposes  of  taxation,  upon  which  said  estates  in  ex- 
pectancy may  have  been  limited. 

Where  r,n  estate  for  life  or  for  years  can  be  divested  by  the 
act  or  omission  of  the  legatee  or  devisee  it  shall  be  taxed  as  if 
there  were  no  possibility  of  such  divesting. 

The  report  of  the  appraiser  shall  be  made  in  duplicate,  one 
of  which  duplicates  shall  be  filed  in  the  office  of  the  surrogate 
and  the  other  in  the  office  of  the  state  comptroller.  (Thus 
amended  l>y  L.  1905,  chap.  368,  in  effect  June  1,  1905.) 

§  231.  Determination  of  surrogate. —  From  such  report  of 
appraisal  and  other  proof  relating  to  any  such  estate  before  the 
surrogate,  the  surrogate  shall  forthwith,  as  of  course,  determine 
the  cash  value  of  all  estates  and  the  amount  of  tax  to  which 
the  same  are  liable ;  or  the  surrogate  may  so  determine  the  cash 
value  of  all  such  estates  and  the  amount  of  tax  to  which  the 
same  are  liable,  without  appointing  an  appraiser. 

The  superintendent  of  insurance  shall,  on  the  application  of 
any  surrogate,  determine  the  value  of  any  such  future  or  con- 
tingent estates,  income  or  interest  therein  limited,  contingent, 
dependent  or  determinable  upon  the  life  or  lives  of  persons  in 
being,  upon  the  facts  contained  in  any  such  appraiser's  report, 
and  certify  the  same  to  the  surrogate,  and  his  certificate  shall 
be  conclusive  evidence  that  the  method  of  computation  adopted 
therein  is  correct. 

The  surrogate  shall  immediately  give  notice,  upon  the  deter- 
mination by  him  as  to  the  value  of  any  estate  which  is  taxable 
under  this  article,  and  of  the  tax  to  which  it  is  liable,  to  all 
persons  known  to  be  interested  therein,  and  shall  immediately 


THE  TAX  LAW.  121 

forward  a  copy  of  such  taxing  order  to  the  state  comptroller. 
The  surrogate  shall  also  forward  to  the  state  comptroller  copies 
of  all  orders  entered  by  him  in  relation  to  or  affecting  in  any 
way  the  transfer  tax  on  any  estate,  including  orders  of  ex- 
emption. 

If,  however,  it  appear  at  any  stage  of  the  proceedings  that 
any  of  such  persons  known  to  be  interested  in  the  estate  is  an 
infant  or  an  incompetent,  the  surrogate  may,  if  the  interest 
of  such  infant  or  incompetent  is  presently  involved  and  is  ad- 
verse to  that  of  any  of  the  other  persons  interested  therein, 
appoint  a  special  guardian  of  such  infant;  but  nothing  in  this 
provision  shall  affect  the  right  of  an  infant  over  fourteen  years 
of  age  or  of  any  one  on  behalf  of  an  infant  under  fourteen 
years  of  age  to  nominate  and  apply  for  the  appointment  of  a 
special  guardian  for  such  infant  at  any  stage  of  the  proceedings. 
(Thus  amended  by  L.  1905,  chap.  368,  in  effect  June  1,  1005.) 

§  232.  Appeal  and  other  proceedings. —  The  state  comptrol- 
ler or  any  person  dissatisfied  with  the  appraisement  or  assess- 
ment and  determination  of  tax  may  appeal  therefrom  to  the 
surrogate  within  sixty  days  from  the  fixing,  assessing  and  de- 
termination of  tax  by  the  surrogate  as  herein  provided,  upon 
filing  in  the  office  of  the  surrogate  a  written  notice  of  appeal, 
which  shall  state  the  grounds  upon  which  the  appeal  is  taken. 

Within  two  years  after  the  entry  of  an  order  or  decree  of  a 
surrogate  determining  the  value  of  an  estate  and  assessing  the 
tax  thereon,  the  state  comptroller  may,  if  he  believes  that  such 
appraisal,  assessment  or  determination  has  been  fraudulently, 
collusively,  or  erroneously  made,  make  application  to  a  justice 
of  the  supreme  court  of  the  judicial  district  in  which  the  former 
owner  of  such  estate  resided,  for  a  reappraisal  thereof.  The 
justice  to  whom  such  application  is  made  may  thereupon  ap- 
point a  competent  person  to  reappraise  such  estate.  Such 
appraiser  shall  possess  the  powers  and  be  subject  to  the  duties 
of  an  appraiser  under  section  two  hundred  and  thirty  and  shall 
receive  compensation  at  the  rate  of  five  dollars  per  day  for  every 
day  actually  and  necessarily  employed  in  such  appraisal.  Such 
compensation  shall  be  payable  by  the  state  comptroller  or  county 


122  THE  TAX  LAW. 

treasurer  out  of  any  funds  he  may  have  on  account  of  any  tax 
imposed  under  the  provisions  of  this  article,  upon  the  certificate 
of  the  justice  appointing  him.  The  report  of  such  appraiser 
shall  be  filed  with  the  justice  by  whom  he  was  appointed,  and 
thereafter  the  same  proceedings  shall  be  taken  and  had  by  and 
before  such  justice  as  are  herein  provided  to  be  taken  and  had  by 
and  before  the  surrogate.  The  determination  and  assessment 
of  such  justice  shall  supersede  the  determination  and  assess- 
ment of  the  surrogate,  and  shall  be  filed  by  such  justice  in  the 
office  of  the  state  comptroller,  and  a  certified  copy  thereof  trans- 
mitted to  the  surrogate's  court  of  the  proper  county.  (Thus 
amended  by  L.  1905,  chap.  368,  in  effect  June  1,  1905.) 

§  233.  Composition  of  transfer  tax  upon  certain  estates. — 
The  state  comptroller,  by  and  with  the  consent  of  the  attorney- 
general  expressed  in  writing,  is  hereby  empowered  and  author- 
ized to  enter  into  an  agreement  with  the  trustees  of  any  estate 
in  which  remainders  or  expectant  estates  have  been  of  such  A 
nature,  or  so  disposed  and  circumstanced  that  the  taxes  therein 
were  held  not  presently  payable,  or  where  the  interests  of  the 
legatees  or  devisees  were  not  ascertainable  under  the  provisions 
of  chapter  four  hundred  and  eighty-three  of  the  laws  of  eighteen 
hundred  arid  eighty-five;  chapter  three  hundred  and  ninety- 
nine  of  the  laws  of  eighteen  hundred  and  ninety-two,  or  chapter 
nine  hundred  and  eight  of  the  laws  of  eighteen  hundred  and 
ninety-six,  and  the  several  acts  amendatory  thereof  and  supple- 
mental thereto;  and  to  compound  such  taxes  upon  such  terms 
as  may  be  deemed  equitable  and  expedient ;  and  to  grant  dis- 
charge to  said  trustees  upon  the  payment  of  the  taxes  provided 
for  in  such  composition,  provided,  however,  that  no  such  com- 
position shall  be  conclusive  in  favor  of  said  trustees  as  agjiinsi. 
the  interests  of  such  cestuis  que  trust  as  may  possess  either 
present  rights  of  enjoyment,  or  fixed,  absolute  or  indefeasible 
rights  of  future  enjoyment,  or  of  such  as  would  possess  such 
rights  in  the  event  of  the  immediate  termination  of  particular 
estates,  unless  they  consent  thereto,  either  personally,  when 
competent,  or  by  guardian  or  committee.  Composition  or 
settlement  made  or  effected  under  the  provisions  of  this  section 


THE  TAX  LAW.  123 

shall  be  executed  in  triplicate,  and  one  copy  filed  in  the  office 
of  the  state  comptroller,  one  copy  in  the  office  of  the  surrogate 
of  the  county  in  which  the  tax  was  paid,  and  one  copy  delivered 
to  the  executors,  administrators  or  trustees  who  shall  be  parties 
thereto.  (Thus  amended  by  the  L.  1905,  chap.  368,  in  effect 
June  1,  1905.) 

§  234.  Surrogate's  assistants  in  New  York,  Kings  and  other 
counties. —  The  state  comptroller  may,  upon  the  recommenda- 
tion of  the  surrogate,  appoint,  and  may  at  pleasure  remove 
assistants  and  clerks  in  the  surrogate's  offices  of  the  following 
counties,  at  annual  salaries  to  be  fixed  by  him  not  to  exceed  the 
amounts  hereinafter  specified: 

1.  In  New  York  county,  a  transfer  tax  assistant,  four  thou- 
sand dollars;  a  transfer  tax  clerk,  two  thousand  four  hundred 
dollars;  an  assistant  clerk,  eighteen  hundred  dollars;  a  record- 
ing clerk,  thirteen  hundred  dollars;  a  stenographer,  eight  hun- 
dred dollars;  and  shall  be  entitled  to  expend  not  more  than 
five  hundred  dollars  a  year  in  such  office  for  expenses  neces- 
sarily incurred  in  the  assessment  and  collection  of  taxes  under 
this  article. 

2.  In  Kings  county,  a  transfer  tax  assistant,  four  thousand 
dollars ;  a  transfer  tax  clerk,  two  thousand  dollars ;  an  assistant 
clerk,  fifteen  hundred  dollars;  and  shall  be  entitled  to  expend 
not  more  than  five  hundred  dollars  a  year  for  expenses  neces- 
sarily incurred  in  the  assessment  and  collection  of  taxes  under 
this  article. 

3.  In  Erie  county,  a  transfer  tax  clerk,  eighteen  hundred 
dollars. 

4.  In  Westchester  county,  a  transfer  tax  assistant,  two  thou- 
sand five  hundred  dollars.     (Thus  amended  by  L.  1906,  chap. 
699,  taking  effect  June  2,  1906.) 

5.  In  Albany  county,  a  transfer  tax  clerk,  one  thousand  dol- 
lars. 


124  THE  TAX  LAW. 

6.  In   Queens   county,   a   transfer  tax  clerk,   one   thousand 
dollars. 

7.  In  Onondaga  county,  a  transfer  tax  clerk,  twelve  hundred 
dollars. 

8.  In  Monroe  county,  two  transfer  tax  clerks,  seven  hundred 
and  fifty  dollars  each ;  and  shall  be  entitled  to  expend  not  more 
than  two  hundred  dollars  a  year  for  expenses  necessarily  in- 
curred in  the  assessment  and  collection  of  taxes  under  this 
article. 

9.  In  Dutchess  county,  a  transfer  tax  clerk,  nine  hundred 
dollars. 

10.  In  Oneida  county,  not  more  than  two  transfer  tax  clerks, 
twelve  hundred  dollars  in  the  aggregate. 

11.  In  Suffolk  county,  a  transfer  tax  clerk,  one  thousand 
dollars. 

12.  In  Ulster  county,  a  transfer  tax  clerk,  seven  hundred  and 
twenty  dollars. 

Such  salaries  and  expenses  shall  be  paid  monthly  by  the  state 
comptroller,  upon  proper  vouchers,  out  of  any  funds  in  his  hands 
on  account  of  taxes  collected  under  this  article.  (Thus  amended 
~by  L.  1905,  chap.  368,  in  effect  June  1,  1905.) 

§  235.  Proceedings  by  district  attorneys. —  If,  after  the  ex- 
piration of  eighteen  months  from  the  accrual  of  any  tax  under 
this  article,  such  tax  shall  remain  due  and  unpaid,  after  the 
refusal  or  neglect  of  the  persons  liable  therefor  to  pay  the 
same,  the  state  comptroller  shall  notify  the  district  attorney 
of  the  county,  in  writing,  of  such  failure  or  neglect,  and  such 
district  attorney  shall  apply  to  the  surrogate's  court  for  a  cita- 
tion, citing  the  persons  liable  to  pay  such  tax  to  appear  before 
the  court  on  the  day  specified,  not  more  than  three  months  after 
the  date  of  such  citation,  and  shov  oause  why  the  tax  should 


THE  TAX  LAW.  125 

not  be  paid.  The  surrogate,  upon  such  application,  and  when- 
ever it  shall  appear  to  him  that  any  such  tax  accruing  under 
this  article  has  not  been  paid  as  required  by  law,  shall  issue 
such  citation  and  the  service  of  such  citation,  and  the  time, 
manner  and  proof  thereof,  and  the  hearing  and  determination 
thereon  and  the  enforcement  of  the  determination  or  order 
made  by  the  surrogate  shall  conform  to  the  provisions  of  the 
code  of  civil  procedure  for  the  service  of  citations  out  of  the 
surrogate's  court,  and  the  hearing  and  determination  thereon 
and  its  enforcement  so  far  as  the  same  may  be  applicable.  The 
surrogate  or  his  clerk  shall,  upon  request  of  the  district  attorney 
or  the  state  comptroller,  furnish,  without  fee,  one  or  more  tran- 
scripts of  such  decree,  which  shall  be  docketed  and  filed  by  the 
county  clerk  of  any  county  of  the  state  without  fee,  in  the  same 
manner  and  with  the  same  effect  as  provided  by  law  for  filing 
and  docketing  transcripts  of  decrees  of  the  surrogate's  court. 
The  cost  awarded  by  any  such  decree  after  the  collection  and 
payment  of  the  tax  to  the  state  comptroller  or  county  treasurer 
may  be  retained  by  the  district  attorney  for  his  own  use.  Such 
costs  shall  be  fixed  by  the  surrogate  in  his  discretion,  but  shall 
not  exceed  in  any  case  where  there  has  not  been  a  contest,  the 
sum  of  one  hundred  dollars,  or  where  there  has  been  a  contest 
the  sum  of  two  hundred  and  fifty  dollars.  Whenever  the  sur- 
rogate shall  certify  that  there  was  probable  cause  for  issuing 
a  citation  and  taking  the  proceedings  specified  in  this  section, 
the  state  comptroller,  after  the  same  shall  have  been  audited 
by  him,  shall  pay  all  expenses  incurred  for  the  service  of  cita- 
tions and  other  lawful  disbursements  not  otherwise  paid,  from 
funds  in  his  hands  on  account  of  such  tax,  or  in  a  county  in 
which  the  office  of  appraiser  is  not  salaried,  by  a  warrant  upon 
the  county  treasurer  of  such  county  for  the  payment  by  him 
of  the  same  from  funds  in  his  hands  on  account  of  such  tax. 
In  proceedings  to  which  the  state  comptroller  is  cited  as  a 
party  under  sections  two  hundred  and  twenty-nine  and  two 
hundred  and  thirty  of  this  article,  he  is  authorized  to  designate 
and  retain  counsel  to  represent  him  and  to  pay  the  expenses 
thereby  incurred  out  of  the  funds  which  may  be  in  his  hands 
on  account  of  this  tax  in  any  case  in  a  countjr  where  the  office 
of  appraiser  is  salaried,  and  in  any  other  county  the  state  comp- 


126  THE  TAX  LAW. 

troller  shall  by  warrant  direct  the  county  treasurer  to  pay  such 
expenses  out  of  any  funds  which  may  be  in  his  hands  on  account 
of  this  tax;  provided,  however,  that  in  the  collection  of  taxes 
upon  estates  of  non-resident  decedents  the  state  comptroller 
shall  not  allow  for  legal  services  up  to  and  including  the  entry 
of  the  order  of  the  surrogate  fixing  the  tax  a  sum  exceeding  ten 
per  centum  of  the  taxes  and  penalties  collected.  (Thus  amended 
~by  the  L.  1905,  chap.  368,  in  effect  June  1,  1905.) 

§  236.  Receipts  from  county  treasurer  or  comptroller. —  One 
of  the  duplicate  receipts  issued  for  the  payment  of  any  tax 
under  this  article,  as  provided  by  section  two  hundred  and 
twenty-two,  shall  be  countersigned  by  the  state  treasurer  if  the 
same  was  issued  by  the  state  comptroller,  and  by  the  state  comp- 
troller if  issued  by  any  county  treasurer.  The  officer  so  count- 
ersigning the  same  shall  charge  the  officer  receiving  the  tax 
with  the  amount  thereof  and  affix  the  seal  of  his  office  to  the 
same  and  return  to  the  proper  person;  but  no  executor,  ad- 
ministrator or  trustee  shall  be  entitled  to  a  final  accounting  of 
an  estate  in  settlement  of  which  a  tax  is  due  under  the  pro- 
visions of  this  article  unless  he  shall  produce  a  receipt  so  sealed 
and  countersigned,  or  a  certified  copy  thereof.  Any  person 
shall,  upon  the  payment  of  fifty  cents  to  the  officer  issuing  such 
receipt,  be  entitled  to  a  duplicate  thereof,  to  be  signed,  sealed 
and  countersigned  in  the  same  manner  as  the  original. 

Any  person  shall,  upon  the  payment  of  fifty  cents,  be  en- 
titled to  a  certificate  of  the  state  comptroller  that  the  tax  upon 
the  transfer  of  any  real  estate  of  which  any  decedent  died 
seized  has  been  paid,  such  certificate  to  designate  the  real  prop- 
erty upon  which  such  tax  is  paid,  the  name  of  the  person  so 
paying  the  same,  and  whether  in  full  of  such  tax.  Such  certi- 
ficate may  be  recorded  in  the  office  of  the  county  clerk  or 
register  of  the  county  where  such  real  property  is  situate,  in  a 
book  to  be  kept  by  him  for  that  purpose,  which  shall  be  labeled 
"transfer  tax."  (Thus  amended  by  L.  1905,  chap.  368,  in 
effect  June  1,  1905.) 

§  237.  Fees  of  county  treasurer. —  The  treasurer  of  each 
county  in  which  the  .office  of  appraiser  is  not  salaried  shall  be 


THE  TAX  LAW.  127 

allowed  to  retain  on  all  taxes  paid  and  accounted  for  by  him 
each  fiscal  year  under  this  article,  five  per  centum  on  the  first 
fifty  thousand  dollars,  three  per  centum  on  the  next  fifty  thou- 
sand dollars,  and  one  per  centum  on  all  additional  sums.  Such 
fees  shall  be  in  addition  to  the  salaries  and  fees  now  allowed 
by  law  to  such  officers.  (Thus  amended  by  L.  1905,  chap.  368, 
in  effect  June  1,  1905.) 

§  238.  Books  and  forms  to  be  furnished  by  the  state  comp- 
troller.—  The  state  comptroller  shall  furnish  to  each  surrogate, 
a  book,  which  shall  be  a  public  record,  and  in  which  he  shall 
enter  the  name  of  every  decedent  upon  whose  estate  an  applica- 
tion to  him  has  been  made  for  the  issue  of  letters  of  administra- 
tion, or  letters  testamentary,  or  ancillary  letters,  the  date  and 
place  of  death  of  such  decedent,  the  estimated  value  of  his  real 
and  personal  property,  the  names,  places  'of  residence  and  re- 
lationship to  him  of  his  heirs-at-law,  the  names  and  places  of 
residence  of  the  legatees  and  devisees  in  any  will  of  any  such 
decedent,  the  amount  of  each  legacy  and  the  estimated  value 
of  any  real  property  devised  therein,  and  to  whom  devised. 
These  entries  shall  be  made  from  the  data  contained  in  the 
papers  filed  on  any  such  application,  or  in  any  proceeding  re- 
lating to  the  estate  of  the  decedent.  The  surrogate  shall  also 
enter  in  such  book  the  amount  of  the  personal  property  of  any 
such .  decedent,  as  shown  by  the  inventory  thereof  when  made 
and  filed  in  his  office,  and  the  returns  made  by  any  appraiser 
appointed  by  him  under  this  article,  and  the  value  of  annuities, 
life  estates,  terms  of  years,  and  other  property  of  any  such  de- 
cedent or  given  by  him  in  his  will  or  otherwise,  as  fixed  by 
the  surrogate,  and  the  tax  assessed  thereon,  and  the  amounts 
of  any  receipts  for  payment  of  any  tax  on  the  estate  of  such 
decedent  under  this  article  filed  with  him.  The  state  comp- 
troller shall  also  furnish  to  each  surrogate  forms  for  the  reports 
to  be  made  by  such  surrogate,  which  shall  correspond  with  the 
entries  to  be  made  in  such  book.  (Thus  amended  by  L.  1905, 
ch.  368,  in  effect  June  1,  1905.) 

§  239.  Reports  of  surrogate  and  county  clerk. —  Each  surro- 
gate shall,  on  January,  April,  July  and  October  first  of  each 


128  THE  TAX  LAW. 

year  make  a  report,  upon  the  forms  furnished  by  the  comp- 
troller containing  all  the  data  and  matters  required  to  be  en- 
tered in  such  book,  which  shall  be  immediately  forwarded  to  the 
state  comptroller.  The  county  clerk  of  each  county,  except  in 
the  counties  where  the  registers  perform  the  duties  of  the  county 
clerk  with  respect  to  the  recording  of  deeds,  and  when  in  such 
counties  the  registers,  shall,  at  the  same  times,  make  reports 
containing  a  statement  of  any  deed  or  other  conveyance  filed  or 
recorded  in  his  office,  of  any  property,  which  appears  to  have 
been  made  or  intended  to  take  effect  in  possession  or  enjoyment 
after  the  death  of  the  grantor  or  vendor,  with  the  name  and 
place  of  residence  of  such  grantor  or  vendor,  the  name  and  place 
of  residence  of  the  grantee  or  vendee,  and  a  description  of  the 
property  transferred,  which  shall  be  immediately  forwarded  to 
the  state  comptroller.  (Thus  amended  ~by  L.  1905,  chap.  368, 
in  effect  June  1,  1905.) 

§  240.  Reports  of  county  treasurer. —  Each  county  treasurer 
in  a  county  in  which  the  office  of  appraiser  is  not  salaried  shall 
make  a  report,  under  oath,  to  the  state  comptroller,  on  January, 
April,  July  and  October  first  of  each -year,  of  all  taxes  received 
by  him  under  this  article,  stating  for  what  estate  and  by  whom 
and  when  paid.  The  form  of  such  report  may  be  prescribed  by 
the  state  comptroller.  He  shall,  at  the  same  time,  pay  the  state 
treasurer  all  taxes  received  by  him  under  this  article  and  not 
previously  paid  into  the  state  treasury,  and  for  all  such  taxes 
collected  by  him  and  not  paid  into  the  state  treasury  within 
thirty  days  from  the  times  herein  required,  he  shall  pay  interest 
at  the  rate  of  ten  per  centum  per  annum.  (Thus  amended  by  L. 
1905,  chap.  368,  in  effect  June  1,  1905.) 

§  240-a.  Report  of  state  comptroller;  payment  of  taxes. — 
The  state  comptroller  shall  deposit  all  taxes  collected  by  him 
under  this  article  in  a  responsible  bank,  banking  house  or  trust 
company  in  the  city  of  Albany,  which  shall  pay  the  highest  rate 
of  interest  to  the  state  for  such  deposit,  to  the  credit  of  the  state 
comptroller  on  account  of  the  transfer  tax.  And  every  such 
bank,  banking  house  or  trust  company,  shall  execute  and  file  in 
his  office  an  undertaking  to  the  state,  in  the  sum,  and  with  such 


THE  TAX  LAW. 

sureties,  as  are  required  and  approved  by  the  comptroller,  for 
the  safe  keeping  and  prompt  payment  on  legal  demand  therefor 
of  all  such  moneys  held  by  or  on  deposit  in  such  bank,  banking 
house  or  trust  company,  with  interest  thereon  on  daily  balances- 
at  such  rate  as  the  comptroller  may  fix.  Every  such  under- 
taking shall  have  endorsed  thereon,  or  annexed  thereto,  the 
approval  of  the  attorney  general  as  to  its  form.  The  state 
comptroller  shall  on  the  first  day  of  each  month  make  a  verified 
return  to  the  state  treasurer  of  all  taxes  received  by  him  under 
this  article,  stating  for  what  estate,  and  by  whom  and  when 
paid ;  and  shall  credit  himself  with  all  expenditures  made  since 
his  last  previous  return  on  account  of  such  taxes,  for  salary,  re- 
funds, or  other  purposes  lawfully  chargeable  thereto.  He  shall 
on  or  before  the  tenth  day  of  each  month  pay  to  the  state  treas- 
urer the  balance  of  such  taxes  remaining  in  his  hands  at  the 
close  of  business  on  the  last  day  of  the-  previous  month,  as  ap- 
pears from  such  returns.  (Added  by  L.  1901,  chap.  173,  and- 
amended  by  L.  1905,  chap.  368,  in  effect  June  1,  1905,  and  L 
1906,  chap.  Ill,  taking  effect  March  28,  1906.) 

§  241.  Application  of  taxes. — All  taxes  levied  and  collated 
under  this  article  when  paid  into  the  treasury  of  the  state  shall 
be  applicable  to  the  expenses  of  the  state  government  and  to 
such  other  purposes  as  the  legislature  shall  by  law  direct.  (Thus 
amended  by  L.  1905,  chap.  368,  in  effect  June  1,  1905.) 

§  242.  Definitions. —  The  words  "  estate  "  and  "  property,"  a& 
used  in  this  article,  shall  be  taken  to  mean  the  property  or  in- 
terest therein  of  the  testator,  intestate,  grantor,  bargainer  or 
vendor,  passing  or  transferred  to  those  not  herein  specifically 
exempted  from  the  provisions  of  this  article,  and  not  as  the 
property  or  interest  therein  passing  or  transferred  to  individual 
.  legatees,  devisees,  heirs,  next  of  kin,  grantees,  donees  or  vendees,, 
and  shall  include  all  property  or  interest  therein,  whether  sit- 
uated within  or  without  this  state.  The  word  "  transfer,"  as 
used  in  this  article,  shall  be  taken  to  include  the  passing  of  prop- 
erty or  any  interest  therein  in  possession  or  enjoyment,  present 
or  future,  by  inheritance,  descent,  devise,  bequest,  grant,  deed, 
bargain,  sale  or  gift,  in  the  manner  herein  prescribed.  The 
vords  "  county  treasure/1  "  and  "  district  attorney,"  as  used  in 


130  THE  TAX  LAW. 

this  article,  shall  be  taken  to  mean  the  treasurer  or  the  district 
attorney  of  the  county  of  the  surrogate  having  jurisdiction  as 
provided  in  section  two  hundred  and  twenty-eight  of  this  article. 
(Thus  amended  by  L.  1905,  chap.  368,  in  effect  June  1,  1905.) 

§  243.  Exemptions  in  article  one  not  applicable. —  The  ex- 
emptions enumerated  in  section  four  of  the  tax  law,  of  which 
this  article  is  a  part,  shall  not  be  construed  as  being  applicable 
in  any  manner  to  the  provisions  of  article  ten  hereof.  (Thus 
amended  by  L.  1905,  chap.  368,  in  effect  June  1,  1905.) 

L.  1901,  chap.  173,  §  17.  Repeal. —  Chapter  eight  hundred  and  sixty- 
one  of  the  laws  of  eighteen  hundred  and  ninety-five;  chapters  nine 
hundred  and  fifty-two  and  nine  hundred  and  fifty-three  of  the  laws  of 
eighteen  hundred  and  ninety-six,  chapter  three  hundred  and  seventy- 
five  of  the  laws  of  eighteen  hundred  and  ninety-seven;  and  chapters 
two  hundred  and  sixty-nine,  two  hundred  and  seventy  and  four  hun- 
dred and  six  of  the  laws  of  eighteen  hundred  and  ninety-nine,  and 
chapter  three  hundred  and  seventy-nine  of  the  laws  of  nineteen  hundred, 
are  hereby  repealed. 

L.  1901,  chap.  173,  §  18.  Taking  effect. —  This  act  shall  take  effect 
April  first,  nineteen  hundred  and  one,  except  that  salaried  appraisers 
for  the  counties  of  Albany,  Suffolk,  Westchester,  Dutchess,  Monroe, 
Oneida,  Onondaga,  Orange  and  Rensselaer  shall  not  be  appointed  before 
January  first,  nineteen  hundred  and  two,  and  until  such  time  such 
counties  shall  be  deemed  counties  in  which  the  office  of  appraiser  is 
not  swlaried  under  the  provisions  of  this  act.  (Thus  amended  by  L. 
1001,  chap.  288,  taking  effect  April  5,  1901.) 


THE  TAX  LAW.  131 


ARTICLE  XL 

PROCEDURE. 

Section  250.  Contents  of  petition. 

251.  Allowance  of  writ  of  certiorari. 

252.  Return  of  writ. 

253.  Proceeding  upon  return. 

254.  Costs. 

255.  Appeals. 

256.  Refund  of  tax     paid  upon  illegal,  erroneous  or  unequal 

assessment. 

257.  When  county  court  may  apportion  tax. 

258.  Application  to  county  court  where  taxpayer  has  removed 

from  the  county. 

259.  Supplementary  proceedings  to  collect  a  tax. 
259a.  Dismissal  of  suits  or  proceedings. 

260.  Power  of  county  court  when  collector  fails  to  pay  over. 

261.  Payment  of  moneys  collected. 

262.  Collection  of  deficiency  from  collector's  bondsmen. 

263.  Attorney-general  to  bring  action  for  sequestration. 

264.  Settlement  of  conflicting  claims  to  surplus  of  tax  sale. 

f  250.  Contents  of  petition. —  Any  person  assessed  upon 
any  assessment-roll,  claiming  to  be  aggrieved  by  any  assess- 
ment for  property  therein,  may  present  to  the  supreme  court 
a  petition  duly  verified  setting  forth  that  the  assessment  is 
illegal,  specifying  the  grounds  of  the  alleged  illegality,  or 
if  erroneous  by  reason  of  overvaluation,  stating  the  extent 
of  such  overvaluation,  or  if  unequal  in  that  the  assessment 
has  been  made  at  a  higher  proportionate  valuation  than  the 
assessment  of  other  property  on  the  same  roll  by  the  same 
officers,  specifying  the  instances  in  which  such  inequality 
exists,  and  the  extent  thereof,  and  stating  that  he  is  or  will 
be  Injured  thereby.  Such  petition  must  show  that  applica- 
tion has  been  made  in  due  time  to  the  proper  officers  to  cor- 
rect such  assessment.  Two  or  more  persons  assessed  upon 
the  same  roll  who  are  affected  in  the  same  manner  by  the 
alleged  illegality,  error  or  inequality,  may  unite  in  the  same 
petition. 

"  §  251.  Allowance  of  writ  of  certiorari. —  Such  petition  must 
be  presented  to  a  justice  of  the  supreme  court  or  at  a  special 


132  THE  TAX  LAW. 

i 

term  of  the  supreme  court  in  the  judicial  district  in  which 
the  assessment  complained  of  was  made,  within  fifteen  days 
after  the  completion  and  filing  of  the  assessment-roll  and 
the  first  posting  or  publication  of  the  notice  thereof  as  re- 
quired by  this  chapter.  Upon  the  presentation  of  such  pe- 
tition, the  justice  or  court  may  allow  a  writ  of  certiorari  to 
the  officers  making  the  assessment,  to  review  such  assessment, 
and  shall  prescribe  therein  the  time  within  which  a  return 
thereto  must  be  made  and  served  upon  the  relator's  attor- 
ney, which  shall  not  be  less  than  ten  days,  and  may  be  ex- 
tended by  the  court  or  a  justice  thereof.  Such  writ  shall 
be  returnable  to  a  special  term  of  the  supreme  court  of  the 
judicial  district  in  which  the  assessment  complained  of  was 
made.  The  allowance  of  the  writ  shall  not  stay  the  pro- 
ceedings of  the  assessors  or  other  persons  to  whom  it  is  di- 
rected or  to  whom  the  assessment  is  delivered,  to  be  acted 
upon  according  to  law. 

§  252.  Return  to  writ —  The  officers  making  a  return  to 
stlch  writ  shall  not  be  required  to  return  the  original  assess- 
ment-roll or  other  original  papers  acted  upon  by  them,  but 
it  shall  be  sufficient  to  return  certified  or  sworn  copies  of 
such  roll  or  papers,  or  of  such  portions  thereof  as  may  be 
called  for  by  such  writ.  The  return  must  concisely  set  forth 
such  other  facts  as  may  be  pertinent  and  material  to  show 
the  value  of  the  property  assessed  on  the  roll  and  the  ground§ 
for  the  valuation  made  by  the  assessing  officers  and  the  re- 
turn must  be  verified. 

§  253.  Proceedings  upon  return. —  If  it  shall  appear  upon 
the  return  to  any  such  writ  that  the  assessment  complained 
of  is  illegal  or  erroneous  or  unequal  for  any  of  the  reasons 
alleged  in  the  petition,  the  court  may  order  such  assessment, 
if  legal,  to  be  stricken  from  the  roll,  or  if  erroneous  or  un- 
equal, it  may  order  a  re-assessment  of  the  property  of  tha 
petitioner,  or  the  correction  of  his  assessment  upon  the  roll, 
in  whole  or  in  part,  in  such  maner  as  shall  be  in  accordance 
with  law,  or  as  shall  make  it  conform  to  the  valuations  and 
assessments  of  other  property  upon  the  same  roll  and  secure 
equality  of  assessment.  If  upon  the  hearing  it  shall  appear 
to  the  court,  that  testimony  is  necessary  for  the  proper  dis- 


TUB  TAX  LAW.  133 

position  of  the  matter,  it  may  take  evidence  or  may  appoint 
a  referee  to  take  such  evidence  as  it  may  direct,  and  report 
the  same  to  the  court,  with  his  findings  of  fact  and  conclu- 
sions of  law,  which  shall  constitute  a  part  of  the  proceedings 
upon  which  the  determination  of  the  court  shall  be  made. 
A  new  assessment  or  correction  of  an  assessment  made  by 
order  of  the  court  shall  have  the  same  force  and  effect  as  if 
it  had  been  so  made  by  the  proper  officers  within  the  time 
prescribed  by  law  for  making  such  assessment. 

§  254.  Costs. —  Costs  shall  not  be  allowed  against  the  officers  whose 
proceedings  may  be  reviewed  under  any  such  writ  unless  it  shall  ap- 
pear to  the  court,  that  they  acted  with  gross  negligence  or  in  bad 
faith  or  with  malice  in  making  the  assessment  complained  of.  If  the 
writ  shall  be  quashed  or  the  assessment  confirmed,  or  if  the  n «<««!•*• 
ment  complained  of  shall  be  reduced  by  an  amount  less  than  half  the 
reduction  claimed  before  the  assessing  officers  costs  and  disbursements 
shall  be  awarded  against  the  petitioner.  If  the  assessment  shall  be 
reduced  by  an  amount  greater  than  half  the  reduction  claimed  before 
the  assessing  officers,  costs  and  disbursements  shill  be  awarded  against 
the  tax  district  represented  by  the  officers  whose  proceedings  may  be 
reviewed.  The  costs  and  disbursements  shall  not  exceed  those  taxable 
in  an  action  upon  the  trial  of  an  issue  of  fact  in  the  supreme  court, 
except  that  if  evidence  shall  be  taken  there  shall  be  included  in  the 
taxable  costs  and  disbursements  the  expense  of  furnisliir<r  1i»  H<» 
court  or  to  the  referee  a  copy  of  the  stenographer's  minutes  of  the 
evidence  taken.  (Thus  amended  by  L.  1905,  chap.  281,  in  effect  July  1, 
1905.) 

L.  1905,  ch.  281.  §  2.  This  amendment  shall  not  apply  to  the  pro- 
ceedings under  any  writ  granted  prior  to  the  first  day  of  July,  nine- 
teen hundred  and  five. 

§  255.  Appeals. —  An  appeal  may  be  taken  by  either  party  from  an 
order,  judgment  or  determination  under  this  article  as  from  an  order, 
and  it  shall  be  heard  and  determined  in  like  manner  as  appeals  in  the 
supreme  court  from  orders.  All  issues  and  appeals  in  any  proceeding 
under  this  article  shall  have  preference  over  all  other  civil  actions  and 
proceedings  in  all  courts. 

§  256.  Refund  of  tax  paid  upon  illegal,  erroneous  or  unequal  assess- 
ment.—  If  in  a  final  order  in  any  such  proceeding  it  shall  be  ordered 
or  adjudged  that  the  assessment  complained  of  was  illegal,  erroneous 
or  unequal,  and  such  order  shall  not  be  made  in  time  to  enable 
the  assessors  or  other  officers  to  make  a  new  or  corrected  assess- 
ment for  the  use  of  the  board  of  supervisors,  then  at  the  first  annual 
session  of  the  board  of  supervisors  after  such  correction  there 
shall  be  audited  and  allowed  to  the  petitioner  and  included  in  the 
tax  levy  of  such  town,  village  or  city,  made  next  after  the  entry 
of  such  order,  and  paid  to  the  petitioner,  the  amount  paid  by  him, 
in  excess  of  what  the  tax  would  have  been  if  the  assessment  had 
been  made  as  determined  by  such  order  of  the  court,  together  with 


134  THE  TAX  LAW. 

interest  thereon  from  the  date  of  payment.  In  case  th« 
amount  deducted  from  such  assessment  by  such  order  exceeds 
ten  thousand  dollars,  so  much  thereof  as  shall  be  refunded  by 
reason  of  such  corrected  assessment,  other  than  the  propor- 
tion or  percentage  thereof  collected  for  such  town,  village  or 
city  purposes,  shall  be  levied  upon  the  county  at  large  and 
paid  to  the  petitioner  without  further  audit.  The  board  of 
supervisors  shall  audit  and  levy  upon  such  town,  village  or 
city,  the  proportion  or  percentage  of  such  excess  of  tax  col- 
lected for  such  town,  village  or  city  purposes,  which  shall  be 
collected  and  paid  to  the  petitioner  without  other  or  further 
audit. 

County  Law  (L.  1892,  chap.  686),  §  16.  Correction  of  assessments, 
and  returning  and  refunding  of  illegal  taxes. —  Any  such  board 
may  correct  any  manifest  clerical  or  other  error  in  any  assessment  or 
returns  made  by  any  one  or  more  town  officers  to  such  board,  or  which 
may,  or  shall  have  properly  come  before  such  board  for  its  action,  con- 
firmation or  review;  and  cause  to  be  refunded  to  any  person  the 
amount  collected  from  him  of  any  tax  illegally  or  improperly  assessed 
or  levied,  and  upon  the  order  of  the  county  court,  it  shall  refund  any 
such  tax.  In  raising  the  amount  so  refunded,  or  necessary  to  supply 
the  deficiency  caused  by  the  correction  of  any  error  in  such  assessment, 
such  board  shall,  in  the  same  or  next  ensuing  tax  levy,  adjust  and  ap- 
portion such  amount  upon  the  property  of  the  several  towns  and  wards 
of  the  county  as  shall  be  just,  taking  into  consideration  the  portion  of 
the  state,  county,  town  and  ward  included  therein,  and  the  extent  to 
•which  such  town  or  ward  has  been  benefited  thereby. 

Such  board  shall  ascertain,  fix  and  determine  the  amount  to  which 
any  person  or  corporation  is  equitably  entitled  to  receive  back  from 
any  town,  for  taxes  paid  while  the  boundary  line  between  towns  was 
in  dispute  and  cause  the  same  to  be  levied  and  collected. 

§  257.  When  county  conrt  may  apportion  tax. — When  the 
premises  of  one  person  shall  have  been  wrongfully  assessed 
and  taxed  in  with  the  premises  of  another,  the  person  ag- 
grieved thereby  may,  upon  application  to  the  county  court 
of  the  county  in  which  the  property  is  situated,  on  petition 
duly  verified,  and  on  eight  days'  notice  to  the  assessors  of  the 
town  in  which  the  premises  are  situated,  and  to  the  party 
whose  premises  are  included  in  such  wrongful  assessment, 
have  such  assessment  and  tax  apportioned  by  such  county 
court.  The  county  court  shall  take  such  evidence  as  may  be 
necessary  to  determine  the  facts,  and  shall  fix  and  specify 
the  amount  of  the  assessment  and  tax  properly  chargeable 
to  the  petitioner's  property,  and  to  the  other,  party  charge- 
able therewith.  The  collector  of  the  town,  upon  receiving  a 


THE  TAX  LAW.  135 

copy  of  the  order  of  the  county  court,  shall  forthwith  change 
the  assessment-roll  and  tax  to  conform  to  such  order,  and 
shall  receive  the  amount  apportioned  upon  the  premises  of 
the  petitioner  in  full  for  the  tax  upon  such  property. 

§  258.  Application  to  county  court  where  taxpayer  has 
removed  from  the  county. —  If  it  shall  satisfactorily  appear 
by  affidavit  to  the  county  court  of  any  county  that  a  tax 
legally  levied  therein,  except  upon  real  property  of  non- 
residents, cannot  be  collected  because  of  the  removal  of  the 
person  taxed  to  any  other  county  of  the  state,  such  court 
shall,  upon  application  of  the  collector  of  any  tax  district  or 
of  the  county  treasurer  of  the  county,  grant  an  order,  di- 
rected to  the  sheriff  of  the  county  where  such  person  may 
be,  to  collect  the  same  out  of  his  personal  property,  with 
interest  at  the  rate  of  eight  per  centum  per  annum  from  the 
date  of  said  order.  Such  order  shall  be  filed  in  the  office  of 
the  clerk  of  the  county  in  which  it  is  granted,  and  a  certified 
copy  thereof  delivered  to  the  constable  or  sheriff  of  the 
county  where  the  person  liable  for  the  tax  may  be,  and  such 
constable  or  sheriff,  on  receiving  the  same,  shall  execute  it, 
and  make  a  like  return,  and  be  entitled  to  the  same  fees  and 
subject  to  the  same  liabilities  and  penalties  for  neglect  as 
upon  execution  from  any  court  of  record.  The  sheriff  re- 
ceiving such  moneys  shall  pay  the  same  to  the  county  treas- 
urer of  the  county  where  it  was  levied,  to  the  credit  of  the 
town  in  which  it  was  assessed.  This  provision  shall  also 
apply  to  taxes  levied  upon  rents  reserved  as  upon  personal 
property  where  such  taxes  remain  unpaid. 

§  259.  Supplementary  proceedings  to  collect  tax. —  If  a 
tax  exceeding  ten  dollars  in  amount  levied  against  a  person 
or  corporation  is  returned  by  the  proper  collector  uncol- 
lected  for  want  of  personal  property  out  of  which  to  collect 
the  same,  the  supervisor  of  the  town  or  ward,  or  the  county 
treasurer  or  the  president  of  the  village,  if  it  is  a  village 
tax,  may,  within  one  year  thereafter,  apply  to  the  court  for 
the  institution  of  proceedings  supplementary  to  execution, 
as  upon  a  judgment  docketed  in  such  county,  for  the  pur- 
pose of  collecting  such  tax  and  fees,  with  interest  thereon 
from  the  fifteenth  day  of  February  after  the  levy  thereof. 


136  THE  TAX  LAW. 

Such  proceedings  may  be  taken  against  a  corporation,  an-1 
the  same  proceedings  may  thereupon  be  had  in  all  respects 
for  the  collection  of  such  tax  as  for  the  collection  of  a  judg- 
ment by  proceedings  supplementary  to  execution  thereon 
against  a  natural  person,  and  the  same  costs  and  disburse- 
ments may  be  allowed  against  the  person  or  corporation  ex- 
amined as  in  such  supplementary  proceedings  but  none  shall 
be  allowed  in  his  or  its  favor.  The  tax,  if  collected  in  such 
proceeding,  shall  be  paid  to  the  county  treasurer  or  to  the 
supervisor  of  the  town,  and  if  a  village  tax,  to  the  treasurer 
of  the  village.  The  costs  and  disbursements  collected  shall 
belong  to  the  party  instituting  the  proceedings,  and  shall  be 
applied  to  the  payment  of  the  expense  of  such  proceeding. 
The  president  of  a  village  and  a  county  treasurer  shall  have 
no  compensation  for  any  such  proceeding.  A  supervisor 
shall  have  no  other  compensation  except  his  per  diem  pay 
for  time  necessarily  spent  in  the  proceeding. 

L.  1898,  Ch.  79  —  An  Act  to  amend  Chapter  Seven  Hundred  and 
Sixty-six  of  the  Laws  of  Eighteen  Hundred  and  Ninety-seven, 
entitled  "  An  Act  to  Abolish  Fine  and  Imprisonment  for  Non- 
Pay  ment  of  Taxes." 

Section  1.  Chapter  seven  hundred  and  sixty-six  of  the  laws  of  eighteen 
hundred  and  ninety-seven  is  hereby  amended  so  as  to  read  as  follows: 

§  1.  Neglect  or  refusal  to  pay  any  tax  shall  not  be  punishable  as  a 
contempt  or  as  misconduct;  and  no  fine  shall  be  imposed  for  such  non- 
payment, nor  shall  any  person  be  imprisoned  or  otherwise  punishable 
on  account  of  non-payment  of  any  tax,  or  of  any  fine  imposed  for  re- 
fusal or  neglect  to  pay  such  tax. 

§  2.  This  act  shall  not  apply  to  proceedings  supplementary  to  execu- 
tion upon  judgments  recovered  for  taxes. 

§  3.  All  acts  and  parts  of  acts,  inconsistent  with  this  act,  are  hereby 
repealed. 

§  4.  This  act  shall  take  effect  immediately. 

§  259-a.  Dismissal  of  suits  or  proceedings. —  Where  the  per- 
son or  corporation  against  whom  a  proceeding  or  suit  is  brought 
to  collect  a  personal  tax  in  arrears  in  any  town  or  ward,  village, 
county  or  city  of  this  state  is  unable  for  want  of  property  to  pay 
the  tax  in  whole  or  in  part,  or  where  for  other  reasons,  upon  the 
facts,  it  appears  to  the  court  just  that  said  tax  should  not  be 
paid,  the  court  may  dismiss  such  suit  or  proceeding  on  the  pay- 
ment of  such  part  of  the  tax  as  may  be  just  or  on  payment  of 
costs.  (Inserted  ly  L.  1905,  chap.  348,  in  effect  April  26, 
1905.) 


THE  TAX  LAW.  137 

§  260.  Power  of  ccunty  court  when  collector  fails  to  pay 
over. —  If  any  collector  shall  neglect  or  refuse  to  pay  over  the 
moneys  collected  by  him,  to  any  of  the  persons  to  whom  he  is 
required  to  pay  the  same  by  his  warrant,  or  to  accounf  for  the 
same  as  unpaid,  the  county  court,  on  proof  of  such  fact  by 
affidavit,  on  application  of  the  county  treasurer,  shall  make  an 
order  directed  to  the  sheriff  of  the  county,  commanding  him  to 
levy  such  sum  as  shall  remain  unpaid  by  such  collector  out  of 
his  property,  personal  and  real,  and  pay  the  same  to  the  county 
treasurer,  within  sixty  days  from  the  date  of  such  order.  The 
sheriff  shall  cause  the  same  to  be  executed,  and  pay  to  the  county 
treasurer  the  money  levied  by  virtue  thereof,  deducting  for  his 
fees  the  same  compensation  that  the  collector  would  have  been 
entitled  to  retain.  If  the  whole  sum  due  from  the  collector,  or  if 
a  part  only,  or  if  no  part  thereof,  shall  be  collected,  the  sheriff 
shall  state  the  fact  in  his  return,  which  shall  be  made  as  in  the 
case  of  an  execution,  and  the  county  treasurer  shall  give  notice 
to  the  supervisors  of  the  town,  city  or  division  thereof,  of  any 
amount  which  may  remain  due  from  such  collector.  If  the 
sheriff  shall  neglect  to  execute  the  order,  or  to  pay  over  the 
money  collected  thereon,  within  the  time  limited  thereby,  he 
shall  be  liable  therefor  as  in  case  of  an  execution,  and  the 
county  treasurer  shall  immediately  prosecute  such  sheriff  and 
his  sureties  for  the  sum  due  from  him,  which  sum  when  col- 
lected shall  be  paid  into  the  county  treasurer. 

§  261.  Payment  of  moneys  collected. —  The  county  treasurer 
shall  pay  over  the  moneys  received  from  the  sheriff  upon  such 
order  in  the  manner  directed  by  the  warrant  to  the  collector. 
If  the  whole  amount  of  moneys  due  from  the  collector  shall  not 
be  collected  on  such  warrant,  or  otherwise,  the  county  treasurer 
shall  first  retain  the  amount  which  ought  to  have  been  paid  to 
him  before  making  any  payment  to  the  town  officers. 

§  262.  Collection  of  deficiency  from  collector's  bondsmen. — 
If  it  appears  that  the  whole  or  any  part  of  the  moneys  due  from 
the  collector  has  not  been  thus  collected,  the  county  treasurer 
shall  forthwith  give  notice  to  the  supervisor  of  the  town  or  ward 
of  the  amount  still  due  from  such  collector.  The  supervisor 
shall  forthwith  cause  the  undertaking  of  the  collector  to  be 


138  THE  TAX  LAW. 

prosecuted,  and  shall  be  entitled  to  recover  thereon,  the  sum 
due  from  the  collector  with  costs  of  the  action.  The  moneys  re- 
ceived shall  be  applied  and  paid  by  the  supervisor  in  the  same 
manner  as  they  should  have  been  by  the  collector. 

§  263.  Attorney-general  to  bring  action  for  sequestration. — 
It  shall  be  the  duty  of  the  attorney-general,,  on  being  informed 
by  the  comptroller  or  by  the  county  treasurer  of  any  county  that 
any  incorporated  company  refuses  or  neglects  to  pay  the  taxes 
imposed  upon  it,  pursuant  to  articles  one  and  two  of  this  chap- 
ter, to  bring  an  action  in  the  supreme  court  for  the  sequestration 
of  the  property  of  such  corporation  and  the  court  may  so  seques- 
trate the  property  of  such  corporation  for  the  purpose  of  satis- 
fying taxes  in  arrears,  with  the  jcosts  of  prosecution,  and  may, 
also,  in  its  discretion,  enjoin  such  corporation  and  further  pro- 
ceedings under  its  charter  until  such  tax  and  the  costs  incurred 
in  the  action  shall  be  paid.  The  attorney-general  may  recover 
such  tax  with  costs  from  such  delinquent  corporation  by  action 
in  any  court  of  record. 

§  264.  Settlement  of  conflicting  claims  to  surplus  of  tax  sale. 
Whenever  a  surplus  from  the  sale  of  any  property,  for  unpaid 
taxes  in  the  hands  of  the  supervisor  of  a  town,  shall  be  claimed 
by  any  person,  other  than  the  person  for  whose  tax  such  property 
was  sold,  and  such  claim  shall  not  be  settled  by  a  stipulation 
filed  with  the  supervisor,  as  provided  by  this  chapter,  such 
claimant  may  maintain  an  action  against  such  person,  or  such 
person  may  maintain  an  action  against  such  claimant,  to  recover 
such  money  and,  for  the  purposes  of  such  action,  the  defendant 
shall  be  deemed  to  be  in  possession  of  the  surplus  in  the  hands  of 
the  supervisor.  Upon  the  production  of  a  certified  copy  of  a 
final  judgment,  rendered  in  favor  of  either  party,  the  super- 
visor shall  pay  such  surplus  to  the  party  recovering  the  same. 
ISTo  other  cause  of  action  shall  be  joined,  nor  any  set-off  or  coun- 
terclaim be  allowed  in  an  action  brought  pursuant  to  this  section, 
and  if  an  execution  issue  on  a  judgment  rendered  in  such  action, 
it  shall  direct  that  the  costs  only  of  such  judgment  be  levied 
thereon. 


THE  TAX  LAW.  139 


AKTICLE  XII. 

LAWS  REPEALED;  WHEN  TO  TAKE  EFFECT. 

Section  280.  Laws  repealed. 

281.  When  to  take  effect. 

§  280.  laws  repealed. —  Of  the  laws  enumerated  in  the 
schedule  hereto  annexed,  that  portion  specified  in  the  last 
column  is  repealed. 

§  281.  When  to  take  effect.— This  chapter  shall  take  effect 
June  fifteenth,  eighteen  hundred  and  ninety-six. 


140  THE  TAX  LAW. 


ABTICJLE  XIII. 

§  282.  Limitation  of  time. —  The  provisions  of  the  code  of 
civil  procedure,  relative  to  the  limitation  of  time  of  enforcing 
a  civil  remedy,  shall  not  apply  to  any  proceeding  or  action 
taken  to  levy,  appraise,  assess,  determine  or  enforce  the  col- 
lection of  any  tax  or  penalty  prescribed  by  articles  nine  or 
ten,  of  said  chapter,  and  this  act  shall  be  construed  as  having 
been  in  effect  as  of  date  of  the  original  enactment  of  the  cor- 
poration and  inheritance  tax  law,  provided,  however,  that  as 
to  real  estate  in  the  hands  of  bona  fide  purchasers,  the  trans- 
fer tax  shall  be  presumed  to  be  paid  and  cease  to  be  a  lien 
as  against  such  purchasers  after  the  expiration  of  six  years 
from  the  date  of  accrual.  This  act  shall  not  affect  any  action 
or  proceeding  now  pending.  (Article  13  thus  added  by  L. 
1899,  chap.  737,  taking  effect  May  27,  1899.) 


THE  TAX  LAW.  141 


AETICLE  XIV. 

(This  article  added  by  L.  1905,  chap.  729  and  amended  by  L.  1906,  chap.  532, 
taking  effect  July  1,  1906.) 

MORTGAGES  OF  REAL  PROPERTY  WITHIN  THIS  STATE. 

Section  290.  Definitions. 

291.  Exemption  from  local  taxation. 

292.  Exemptions. 
?93.  Recording  tax. 

294.  Payment   of   taxes. 

295.  Effect  of  nonpayment  of  tax. 
290.  Trust  mortgages. 

297.  Apportionment  by  state  board  of  tax  commissioners. 

298.  Payment  over  and  distribution  of  tax. 

299.  Expenses  of  officers. 

300.  Supervisory  power  of  state  board  of  tax  commissioners  and  state 

comptroller. 

301.  Tax  on  prior  advance  mortgages. 


§  290.  Definitions. — The  words  real  property  and  real  estate  as 
used  in  this  article,  in  addition  to  the  definition  thereof  contained 
in  section  two  of  this  chapter  shall  be  understood  to  include 
everything  a  conveyance  or  mortgage  of  which  can  be  recorded  as 
a  conveyance  or  mortgage  of  real  property  under  the  laws  of  the 
state.  The  words  mortgage  of  real  property  as  used  in  this  arti- 
cle include  every  mortgage  by  which  a  lien  is  created  over  or  im- 
posed on  real  property  or  which  affects  the  title  to  real  property, 
notwithstanding  that  it  may  also  be  a  lien  on  personal  or  other 
property  or  that  personal  or  other  property  may  form  part  of  the 
security  for  the  debt  or  debts  secured  by  such  mortgage.  Execu- 
tory contracts  for  the  sale  of  real  property  under  which  the  vendee 
has  or  is  entitled  to  possession  shall  be  deemed  to  be  mortgages  for 
the  purposes  of  this  article  and  shall  be  assessed  at  the  amount 
unpaid  on  such  contracts. 

§  291.  Exemption  from  local  taxation. — All  mortgages  of  real 
property  situated  within  the  state  which  are  taxed  by  this  article 
and  the  debts  and  the  obligations  which  they  secure,  together  with 
the  paper  writings  evidencing  the  same,  shall  be  exempt  from 
other  taxation  by  the  state,  counties,  cities,  towns,  villages,  school 
districts  and  other  local  subdivisions  of  the  state,  except  that  such 


142  THE  TAX  LAW. 

mortgage  shall  not  be  exempt  from  the  taxes  imposed  by  sections 
twenty-four,  one  hundred  and  eighty-seven,  one  hundred  and 
eighty-seven-a,  one  hundred  and  eighty-seven-b  and  article  ten  of 
the  tax  law ;  but  the  exemption  conferred  by  this  section  shall  not 
bo  construed  to  impair  or  in  any  manner  affect  the  title  of  any 
purchaser  of  land  or  real  estate  which  may  be  sold  for  nonpayment 
of  taxes  levied  by  any  local  authority. 

§  292.  Exemptions. — No  mortgage,  of  real  property  situated 
within  this  state  shall  be  exempt,  and  no  person  or  corporation 
owning  any  debt  or  obligation  secured  by  mortgage  of  real  prop- 
erty situated  within  this  state  shall  be  exempt,  from  the  taxes 
imposed  by  this  article  by  reason  of  anything  contained  in  any 
other  statute,  or  by  reason  of  any  provision  in  any  private  act  or 
charter  which  is  subject  to  amendment  or  repeal  by  the  legisla- 
ture, or  by  reason  of  nonresidence  within  this  state  or  for  any 
other  cause. 

§  293.  Recording  tax. — A  tax  of  fifty  cents  for  each  one  hun- 
dred dollars  and  each  remaining  major  fraction  thereof  of  prin- 
cipal debt  or  obligation  which  is,  or  under  any  contingency  may 
be  secured  by  mortgage  of  real  property  situated  within  the  state 
recorded  on  or  after  the  first  day  of  July,  nineteen  hundred  and 
six,  is  hereby  imposed  on  each  such  mortgage,  and  shall  be  col- 
lected and  paid  as  provided  in  this  article. 

§  294.  Payment  of  taxes. — The  taxes  imposed  by  this  article 
shall  be  payable  on  the  recording  of  each  mortgage  of  real  prop- 
erty subject  to  taxes  thereunder.  Such  taxes  shall  be  paid  to  the 
recording  officer  of  any  county  in  which  the  real  property  or  any 
part  thereof  is  situated.  It  shall  be  the  duty  of  such  recording 
officer  to  indorse  upon  each  mortgage  a  receipt  for  the  amount 
of  the  tax  so  paid.  Any  mortgage  so  indorsed  may  thereupon  or 
thereafter  be  recorded  by  any  recording  officer  and  the  receipt  for 
such  tax  indorsed  upon  each  mortgage  shall  be  recorded  therewith. 
The  record  of  such  receipt  shall  be  conclusive  proof  that  the 
amount  of  tax  stated  therein  has  been  paid  upon  such  mortgage. 

§  295.  Effect  of  nonpayment  of  taxes. — ISTo  mortgage  of  real 
property  shall  be  recorded  by  any  county  clerk,  or  register  on  or 


THE  TAX  LAW.  143 

after  the  first  day  of  July,  nineteen  hundred  and  six,  unless  there 
shall  be  paid  the  tax  imposed  by  and  as  in  this  article  provided. 
!N~o  mortgage  of  real  property  which  is  subject  to  the  taxes  im- 
posed by  this  article  shall  be  released,  discharged  of  records  or 
received  in  evidence  in  any  action  or  proceeding,  nor  shall  any 
assignment  of  or  agreement  extending  any  such  mortgage  be 
recorded  unless  the  taxes  imposed  thereon  by  this  article  shall 
have  been  paid  as  provided  in  this  article.  No  judgment  or  final 
order  in  any  action  or  proceeding  shall  be  made  for  the  fore- 
closure or  enforcement  of  any  mortgage  which  is  subject  to  the 
taxes  imposed  by  this  article  or  of  any  debt  or  obligation  secured 
by  or  which  secures  any  such  mortgage,  unless  the  taxes  imposed 
by  this  article  shall  have  been  paid  as  provided  in  this  article. 

§  296.  -Trust  mortgages. — In  the  case  of  mortgages  made  by 
corporations  in  trust  to  secure  payment  of  bonds  or  obligations 
issued  or  to  be  issued  thereafter,  if  the  total  amount  of  principal 
indebtedness  which  under  any  contingency  may  be  advanced  or 
accrue  or  which  may  become  secured  by  any  such  mortgage  which 
is  subject  to  this  article  has  not  been  advanced  or  accrued  thereon 
or  become  secured  thereby  before  such  mortgage  is  recorded,  it 
may  contain  at  the  end  thereof  a  statement  ot  the  amount  which 
at  the  time  of  the  execution  and  delivery  thereof  has  been  ad- 
vanced or  accrued  thereon,  or  which  is  then  secured  by  such  mort- 
gage; thereupon  the  tax  payable  on  recording  of  the  mortgage 
shall  be  computed  on  the  basis  of  the  amount  so  stated  to  have 
been  so  advanced  or  accrued  thereon  or  which  is  stated  to  be 
secured  thereby.  Such  statement  shall  thereafter  at  all  times 
be  binding  upon  and  conclusive  against  the  mortgagee,  the  holders 
of  any  bonds  or  obligations  secured  by  such  mortgage  and  all  per- 
sons claiming  through  the  mortgagee  any  interest  in  the  mortgage 
or  in  the  mortgaged  premises.  The  tax  for  such  sums  of  princi- 
pal indebtedness  as  may  be  advanced,  accrue  or  become  secured 
after  the  execution  and  delivery  of  any  such  mortgage  shall  be 
payable  at  or  before  the  time  when  such  sums  are  advanced,  accrue 
or  become  secured.  Such  additional  tax  shall  be  paid  to  the  re- 
cording officer  where  such  mortgage  has  been  or  is  first  recorded 
and  a  receipt  therefor  shall  be  indorsed  upon  the  mortgage  and 
payment  therefor  shall  be  noted  in  the  margin  of  the  record  of 
such  mortgage  and  the  note  of  such  payment  or  additional  pay- 


144  THE  TAX  LAW. 

inent  shall  have  the  same  force  and  effect  as  the  record  of  receipt 
of  the  tax  which  under  this  article  is  payable  at  or  before  the 
recording  of  the  mortgage. 

§  297.  Apportionment  by  state  board  of  tax  commissioners 

When  the  real  property  covered  by  a  mortgage  is  assessed  in  more 
than  one  county  it  shall  be  the  duty  of  the  state  board  of  tax  com- 
missioners to  ascertain  the  assessed  value  of  the  property  in  each 
county  and  to  apportion  the  amount  upon  which  the  tax  shall  be 
paid  to  the  recording  officer  in  each  of  the  said  counties  upon  the 
basis  of  the  relative  assessments.  Where  the  mortgage  is  a  first 
lien  upon  real  property  situate  in  one  tax  district  and  a  subse- 
quent lien  upon  real  property  situate  in  another  tax  district  it  shall 
be  their  duty  to  apportion  the  amount  of  the  tax  properly  to  be 
credited  to  said  tax  districts  by  ascertaining  the  valuation  of  each 
parcel  as  appears  from  the  last  preceding  assessment-roll  of  the 
tax  district  in  which  such  parcel  is  located  after  deducting  there- 
from the  taxable  amount  of  any  prior  lien.  When  the  real  prop- 
erty covered  by  a  mortgage  is  located  partly  within  the  state  and 
partly  without  the  state  it  shall  be  the  duty  of  the  state  board  of 
tax  commissioners  to  determine  what  proportion  shall  be  taxable 
under  this  article  by  determining  the  relative  value  of  the  mort- 
gaged property  within  this  state  as  compared  to  the  total  value 
of  the  entire  mortgaged  property,  taking  into  consideration  in  so 
doing  the  amount  of  all  prior  incumbrances  upon  such  property 
or  any  portion  thereof.  If  a  mortgage  covering  property  located 
partly  within  the  state  and  partly  without  the  state,  is  presented 
for  record  before  such  determination  has  been  made,  then  there 
may  be  presented  to  the  recording  officer  with  such  mortgage,  a 
statement  in  duplicate  verified  by  the  mortgagor  or  an  officer  or 
duly  authorized  agent  or  attorney  of  the  mortgagor,  specifying 
the  value  of  the  property  covered  by  the  mortgage  within  the 
state  and  the  property  covered  by  the  mortgage  without  the  state, 
stated  separately.  One  of  such  statements  shall  be  filed  by  the 
recording  officer  and  the  other  shall  be  transmitted  by  him  to  the 
ftate  comptroller.  The  tax  payable  under  this  article  before  the 
determination  by  the  state  board  of  tax  commissioners,  shall  be 
computed  upon  such  proportion  of  the  principal  indebtedness 
secured  by  the  mortgage  as  the  value  of  the  mortgaged  property 


THE  TAX  LAW.  145 

•within  the  state  shall  bear  to  the  total  value  of  the  entire  mort- 
gaged property  as  set  forth  in  such  statement.  The  state  comp- 
troller shall  present  the  statement  transmitted  to  him  or  a  certified 
copy  thereof  to  the  state  board  of  tax  commissioners  who  shall 
thereupon  on  not  less  than  ten  days'  notice,  served  personally  or 
by  mail  upon  the  person  making  such  statement,  the  mortgagee 
and  upon  the  comptroller,  proceed  to  determine  what  proportion 
of  the  principal  indebtedness  secured  by  the  mortgage  shall 
be  used  as  the  measure  of  taxation  within  the  state 
under  the  provisions  of  this  article.  They  may  also  determine 
at  the  same  time  the  proportion  of  the  tax  which  shall  be 
paid  by  the  recording  officer  who  has  received  the  same,  to  the 
several  county  treasurers  of  the  respective  counties  in  the  state,  in 
which  parts  of  the  mortgaged  property  are  situated,  and  also  the 
proportion  of  the  tax  to  be  distributed  under  the  provisions  of  this 
article  to  be  credited  to  each  town  or  city  within  a  county.  The 
state  board  of  tax  commissioners  shall  report  their  determination 
to  the  state  comptroller  who  shall  file  a  certified  copy  of  such 
determination  with  the  recording  officer  of  each  county  in  which 
any  part  of  the  mortgaged  property  is  situated.  The  comptroller 
shall  serve  a  copy  of  such  certificate  personally  or  by  mail  upon 
the-  person  making  such  statement  and  upon  the  mortgagee  to- 
gether with  a  notice  requiring  the  payment  to  the  proper  record- 
ing officer  within  ten  days  thereafter,  of  the  amount  of  the  tax 
on  such  mortgage,  if  any,  which  under  the  determination  of  said 
board  remains  unpaid.  Such  additional  tax  shall  become  due  and 
be  deemed  unpaid  upon  the  expiration  of  such  period  of  ten  days. 
The  state  board  of  tax  commissioners  shall  adopt  rules  to  govern 
their  procedure  and  the  manner  of  taking  evidence  in  these  mat- 
ters and  may  require  certified  statements  to  be  furnished  either 
by  boards  of  assessors  or  recording  officers  of  the  respective  coun- 
ties in  relation  thereto,  and  immediately  upon  making  their  deter- 
mination they  shall  file  a  certificate  thereof  with  the  recording- 
officer  of  each  county  within  which  a  portion  of  the  mortgaged 
property  is  situated;  and  a  minute  of  such  determination  shall  be 
entered  in  the  margin  of  the  record  of  the  said  mortgage,  and 
whenever  the  tax  upon  a  mortgage  secured  by  real  property 
assessed  in  two  or  more  counties  shall  have  been  paid,  as  provided 
by  this  article  it  shall  also  be  the  duty  of  the  state  board  of  tax 


146  THE  TAX  LAW. 

commissioners  to  equitably  apportion  between  the  respective  coun- 
ties the  amount  upon  which  such  tax  is  to  be  computed  and  to 
file  the  certificate  of  their  determination  with  the  recording  officer, 
and  thereupon  said  recording  officer  shall  pay  over  to  the  several 
county  treasurers  of  the  respective  counties  or  to  the  chamberlain 
of  the  city  of  New  York  the  sums  fixed  by  said  certificate  of  deter- 
mination. 

§  298.  Payment  over  and  distribution  of  taxes. — Upon  the  first 
day  of  each  month  the  recording  officer  of  each  county  shall  pay 
over  to  the  county  treasurer  of  said  county,  and  in  the  counties 
of  New  York,  Kings,  Queens  and  Richmond  to  the  chamberlain 
of  the  city  of  New  York  all  moneys  received  during  the  preceding 
month  upon  account  of  taxes  paid  to  him  as  herein  described,  after 
deducting  the  necessary  expenses  of  his  office  as  provided  in  section 
two  hundred  and  ninety-nine,  except  taxes  paid  upon  a  mortgage 
which  under  the  provisions  of  section  two  hundred  and  ninety  - 
seven  is  to  be  apportioned  by  the  state  board  of  tax  commissioners 
between  several  counties,  which  taxes  and  money  shall  be  paid 
over  by  him  as  provided  by  the  determination  of  said  state  board 
of  tax  commissioners  within  five  days  after  the  filing  of  said  deter- 
mination in  his  office.  The  county  treasurer  of  each  county  and 
in  the  counties  of  New  York,  Kings,  Queens  and  Richmond  the 
city  chamberlain  of  the  city  of  New  York  shall  on  the  first  day 
of  January,  nineteen  hundred  and  seven,  and  quarterly  thereafter, 
after  having  deducted  the  necessary  expenses  of  his  office  provided 
in  section  two  hundred  and  ninety-nine,  transmit  one-half  of  this 
net  amount  collected  under  the  provisions  of  this  article  to  the 
state  treasurer  and  shall  receive  from  the  state  treasurer  a  receipt 
therefor  countersigned  by  the  comptroller.  And  the  remaining 
portion  thereof  in  the  counties  of  New  York,  Kings,  Queens  and 
Richmond  shall  be  paid  into  the  general  fund  of  the  city  of  Now 
York  and  be  applied  to  the  reduction  of  taxation,  and  in  the 
other  counties  of  the  state  the  remaining  portion  shall  be  held  by 
the  respective  county  treasurers  subject  to  the  order  of  the 
board  of  supervisors  as  hereinafter  provided.  Prior  to  the  first 
day  of  December  in  each  year  the  county  clerk  shall  cause  to  be 
prepared  a  list  containing  a  description  of  all  mortgages  upon 
which  taxes  have  been  paid  by  a  reference  to  the  date  of  each 


THE  TAX  LAW.  147 

mortgage,  the  name  of  the  mortgagor  and  mortgagee,  the  amount 
of  the  principal  debt  upon  which  the  tax  was  paid  together  with 
the  book  and  page  where  said  mortgage  is  recorded,  together  with 
the  town,  city  or  village  in  which  the  mortgaged  property  is 
assessed,  and  if  assessed  in  two  or  more  tax  districts  the  amount 
apportioned  to  each  tax  district  by  the  state  board  of  tax  commis- 
sioners, and  shall  file  the  statement  in  his  office  and  shall  furnish 
a  copy  thereof  to  the  clerk  of  the  board  of  supervisors,  and  another 
copy  thereof  to  the  county  treasurer.  The  board  of  supervisors 
of  the  several  counties  shall,  on  or  before  the  fifteenth  day  of 
December  in  each  year,  ascertain  from  the  statement  filed  vath 
their  clerk  by  the  county  clerk  the  location  of  the  mortgaged  prop- 
erty with  respect  to  the  several  tax  districts  and  the  amount  of 
tax  properly  to  be  credited  to  each  town,  city  and  village  and  of  the 
sum  so  credited  to  each  town  which  does  not  contain  within  its 
boundaries  an  incorporated  village  or  portion  thereof  and  to 
each  city  other  that  the  city  of  ~New  York,  one-half  thereof 
shall  be  applicable  to  the  payment  of  school  taxes  and  one-half 
thereof  shall  be  applicable  to  the  payment  of  state,  county  and 
city,  or  town  expenses;  where  the  town  contains  within  its  limits 
a  city,  incorporated  village,  or  portion  thereof,  the  supervisor 
shall  apportion  to  the  city,  village  or  villages  so  much  of  the 
share  credited  to  the  said  town  as  the  assessed  value  of  said  city, 
village  or  portion  thereof  bears  to  twice  the  total  assessed  valua- 
tion of  the  town,  and  one-half  of  the  remaining  balance  shall  be 
applicable  to  the  payment  of  state,  county  and  town  taxes,  and 
one-half  to  the  payment  of  school  taxes.  The  board  of  super- 
visors of  each  county,  on  or  before  the  fifteenth  day  of  December 
each  year  shall  determine  the  respective  sums  applicable  here- 
under  to  each  of  the  foregoing  purposes  and  shall  issue  their 
warrant  for  the  payment  to  the  city  or  town  collector  of  the 
amount  payable  to  said  city  or  town,  and  their  warrant  for  the 
payment  to  the  village  treasurer  of  the  sum  of  money  to  which 
the  village  shall  be  entitled,  and  for  the  payment  to  the  city 
official  having  authority  to  receive  the  other  moneys  raised  by 
tax  for  school  purposes  in  said  municipality,  and  to  the  supervisor 
of  each  town  of  the  amount  to  which  the  town  is  entitled  for  the 
payment  of  school  taxes;  and  it  shall  be  the  duty  of  said  supervisor 
of  a  town  to  apportion  the  sum  so  paid  to  him  for  school  purposes 


148  THE  TAX  LAW. 

between  the  several  school  districts  upon  the  basis  of  the  aggregate 
days'  attendance  as  appears  from  the  statement  filed  with  him  by 
the  school  commissioners  in  March  of  each  year  and  shall  notify 
the  trustee  or  trustees  of  said  school  district  of  the  amount  stand- 
ing to  the  district's  credit  in  his  hands,  which  sum  shall  be  de- 
ducted from  the  next  annual  school  levy  of  said  district  and  shall 
be  paid  by  the  supervisor  to  the  collector  of  the  school  district 
as  soon  as  the  said  collector  shall  have  received  his  warrant  for 
the  collection  of  the  next  annual  tax. 

§  299.  Expenses  of  officers. — Recording  officers  and  county 
treasurers  and  the  chamberlain  of  the  city  of  New  York,  shall 
severally  be  entitled  to  receive  all  their  necessary  expenses  for 
the  purposes  of  this  act,  including  printing,  hire  of  clerks  and 
assistants,  being  first  approved  and  allowed  by  the  state  board  of 
tax  commissioners,  which  shall  be  retained  by  them  out  of  the 
moneys  coming  into  their  hands. 

§  300.  Supervisory  power  of  state  board  of  tax  commissioners 
and  state  comptroller. — The  state  board  of  tax  commissioners  shall 
have  general  supervisory  power  over  all  recording  officers  in  re- 
spect of  the  duties  imposed  by  this  article  and  they  may  make  such 
rules  and  regulations  for  the  government  of  recording  officers  in 
respect  to  the  matters  provided  for  in  this  article  as  they  may 
deem  proper,  provided  that  such  rules  and  regulations  shall  not  be 
inconsistent  with  this  or  any  other  statute.  The  state  comptroller 
shall  have  general  supervisory  power  over  all  county  treasurers 
and  the  chamberlain  of  the  city  of  Xew  York  in  respect  to  the 
duties  imposed  upon  them  by  this  article,  and  may  make  such 
rules  and  regulations,  not  inconsistent  with  this  or  any  other 
statute,  for  the  government  of  said  county  treasurers  and  cham- 
berlain as  he  deems  necessary  and  appropriate  to  secure  a  due 
accounting  for  all  taxes  and  moneys  collected  or  received  pursuant 
to  any  provision  of  this  article.  All  recording  officers  and  county 
treasurers,  and  the  chamberlain  of  the  city  of  NCAV  York,  shall 
furnish  such  bond,  conditioned  for  the  faithful  and  diligent  dis- 
charge of  the  duties  required  of  them  respectively  by  this  article, 
to  the  people  of  the  state,  within  such  time,  with  such  sureties 
and  in  such  penal  amount,  not  exceeding  twenty-five  thousand 
dollars,  as  the  state  comptroller  may  prescribe. 


THE  TAX  LAW.  149 

§  301.  Tax  on  prior  advance  mortgages. — A  tax  is  imposed  here- 
by on  each  mortgage  of  real  property  recorded  prior  to  the  first 
day  of  July,  nineteen  hundred  and  six,  when  any  part  of  the 
amount  of  principal  indebtedness  which  is  or  under  any  contin- 
gency may  be  secured  by  any  such  mortgage  is  advanced,  after 
first  day  of  July,  nineteen  hundred  and  six.  The  tax  imposed  by 
this  section  shall  be  at  the  rate  of  fifty  cents  for  each  one  hun- 
dred dollars  and  each  remaining  major  fraction  thereof  which 
is,  or  under  any  contingency  may  be  secured  by  any  mortgage 
taxed  under  this  section,  deducting  therefrom  however  any  tax 
paid  on  such  mortgage  under  chapter  seven  hundred  and  twenty- 
nine  of  the  laws  of  nineteen  hundred  and  five.  The  tax  imposed 
by  this  section  shall  be  paid  to  the  recording  officer  of  the  county 
in  which  the  mortgage  is  first  recorded  and  shall  be  paid  when 
at  any  time  any  part  of  the  said  amount  of  principal  indebtedness 
is  advanced  after  the  first  day  of  July,  nineteen  hundred  and  six. 
Section  23  of  chap.  532  of  L.  1906,  also  provides  as  follows: 
All  taxes  imposed  by  or  which  became  due,  payable  or  col- 
lectible on  or  before  the  thirtieth  day  of  June,  nineteen  hun- 
dred and  six,  pursuant  to  chapter  seven  hundred  and  twenty-nine 
of  the  laws  of  nineteen  hundred  and  five,  and  all  taxes  which 
under  section  two  hundred  and  ninety-five  of  the  said  act  are  to 
become  due  and  payable  on  the  thirtieth  day  of  July,  nineteen 
hundred  and  six,  and  all  other  taxes,  if  any,  which  were  imposed 
by  chapter  seven  hundred  and  twenty-nine  of  the  laws  of  nineteen 
hundred  and  five  on  any  mortgage  recorded  prior  to  the  first  day 
of  July,  nineteen  hundred  and  six,  in  respect  to  any  period  end- 
ing on  or  before  the  first  day  of  July,  nineteen  hundred  and  six, 
shall  be  imposed,  become  due,  be  payable  and  collectible,  and  shall 
be  paid  over  and  distributed  in  the  same  manner,  and  with  the 
same  force  and  effect  as  if  this  act  had  not  been  enacted;  and  for 
the  purpose  of  collecting,  paying  over,  distributing  and  enforcing 
any  such  taxes,  chapter  seven  hundred  and  twenty-nine  of  the 
laws  of  nineteen  hundred  and  five  shall  be  deemed  to  be  in  force, 
and  the  lien  for  such  taxes  shall  attach  and  such  taxes  shall  be 
levied  and  collected  as  provided  in  chapter  seven  hundred  and 
twenty-nine  of  the  laws  of  nineteen  hundred  and  five,  anything 
herein  contained  to  the  contrary  notwithstanding. 


150  THE  TAX  LAW. 


ARTICLE  XV. 

(New  article  added  by  L.  1905,  chap.  241,  taking  effect  April  19,  1905.) 
TAX  ON  TRANSFERS  OF  STOCK. 

Section  315.  Amount  of  tax. 

316.  Stamps  how  prepared  and  sold. 

317.  Penalty  for  failure  to  pay  tax. 

318.  Cancelling  stamps;  penalty  for  failure. 

319.  Contracts  for  dies;  expenses  how  paid. 

320.  Illegal  use  of  stamps;  penalty. 

321.  Power  of  state  comptroller. 

322.  Civil  penalty;  how  recovered. 

323.  Effect  of  failure  to  pay  tax. 

324.  Application  of  taxes. 

f  315.  Amount  of  tax. —  There  is  hereby  imposed  and  there 
shall  immediately  accrue  and  be  collected  a  tax  as  herein  pro- 
vided, on  all  sales,  or  agreements  to  sell,  or  memoranda  of  sales 
or  deliveries  or  transfers  of  shares  or  certificates  of  stock  in  any 
domestic  or  foreign  association,  company  or  corporation,  made 
after  the  first  day  of  June  nineteen  hunded  and  five,  whether 
made  upon  or  shown  by  the  books  of  the  association,  company  or 
corporation,  or  by  any  assignment  in  blank,  or  by  any  delivery, 
or  by  any  paper  or  agreement  or  memorandum  or  other  evi- 
dence of  transfer  or  sale  whether  entitling  the  holder  in  any 
manner  to  the  benefit  of  such  stock,  or  to  secure  the  future  pay- 
ment of  money  or  the  future  transfer  of  any  stock  on  each  share 
of  one  hundred  dollars  of  face  value  or  fraction  thereof,  two 
cents.  It  is  not  intended  by  this  act  to  impose  a  tax  upon  an 
agreement  evidencing  the  deposit  of  stock  certificates  as  collat- 
eral security  for  money  loaned  thereon  which  stock  certificates 
are  not  actually  sold,  nor  upon  such  stock  certificates  so  depos- 
ited. The  payment  of  such  tax  shall  be  denoted  by  an  adhesive 
stamp  or  stamps  affixed  as  follows :  In  a  case  where  the  evidence 
of  transfer  is  shown  only  by  the  books  of  the  company  the  stamp 
shall  be  placed  upon  such  books ;  and  where  the  change  of  owner- 
ship is  by  transfer  of  a  certificate  the  stamp  shall  be  placed  upon 
the  certificate ;  and  in  cases  of  an  agreement  to  sell  or  where  the 
transfer  is  by  delivery  of  the  certificate  assigned  in  blank  there 
shall  be  made  and  delivered  bv  the  seller  to  the  buyer  a  bill  or 
memorandum  of  such  sale  to  which  the  stamp  provided  for  by 


THE  TAX  LAW.  151 

this  article  shall  be  affixed;  and  every  bill  or  memorandum 
of  sale  or  agreement  to  sell  before  mentioned  shall  show  the 
date  thereof,  the  name  of  the  seller,  the  amount  of  the 
sale,  and  the  matter  or  thing  to  which  it  refers,  and  no  further 
tax  is  hereby  imposed  upon  the  delivery  of  the  certificate  of 
stock,  or  upon  the  actual  issue  of  a  new  certificate  when  the 
original  certificate  of  stock  is  accompanied  by  the  duly  stamped 
memorandum  of  sale.  The  comptroller  may,  upon  satisfactory 
proof  that  stamps  have  been  erroneously  affixed  and  canceled  ill 
payment  of  the  tax  upon  a  transfer  and  to  the  loss  of  an  inno- 
cent person,  refund  the  amount  thereof  from  appropriations 
made  for  necessar}r  expenses  under  this  act,  provided  the  taj 
justly  due  is  paid  upon  such  transfer.  (Thus  amended  by  Zi, 
1906,  chap.  414,  talcing  effect  May  11,  1906.) 

§  316.  Stamps  how  prepared  and  sold.— Adhesive  stamps  fov 
the  purpose  of  paying  the  state  tax  provided  for  by  this  article 
shall  be  prepared  by  the  state  comptroller,  in  such  form,  and  or.' 
such  denominations  and  in  such  quantities  as  he  may  from  time 
to  time  prescribe,  and  shall  be  sold  by  him  to  the  person  or  per- 
sons desiring  to  purchase  the  same ;  he  shall  make  provision  for 
the  sale  of  such  stamps  in  such  places  and  at  such  times  as  in  his 
judgment  he  may  deem  necessary. 

§  317.  Penalty  for  failure  to  pay  tax.— Any  person  or  persons 
who  shall  make  any  sale  or  transfer  without  paying  the  tax  by 
this  article  imposed  or  who  shall  in  pursuance  of  any  sale  or 
agreement  deliver  any  stock,  or  evidence  of  the  sale  of  or  agree- 
ment to  sell  any  stock  or  bill  or  memorandum  thereof,  without 
having  the  stamps  provided  for  in  this  article  affixed  thereto, 
shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  shall  pay  a  fine  of  not  less  than  five  hundred  nor  more 
than  one  thousand  dollars,  or  be  imprisoned  not  more  than  six 
months,  or  by  both  such  fine  and  imprisonment  at  the  discretion 
of  the  court.  (Thus  amended  by  L.  1906,  chap.  414,  talcing  effect 
May  11,  1906.) 

§  318.  Cancelling  stamps;  penalty  for  failure.— In  every  case 
where  an  adhesive  stamp  shall  be  used  to  denote  the  payment  of 
the  state  tax  provided  by  this  article  the  person  using  or  affixing 
the  same  shall  write  or  stamp  thereupon  the  initials  of  his  name 
and  the  date  upon  which  the  same  shall  be  attached  or  used,  and 
shall  cut  or  perforate  the  stamp  in  a  substantial  manner,  so  that 
such  stamp  cannot  be  again  used ;  and  if  any  person  fraudulently 
makes  use  of  an  adhesive  stamp  to  denote  the  state  tax  imposed 
by  this  article,  without  so  effectually  cancelling  and  obliterating 
such  stamp  such  person  shall  be  deemed  guilty  of  a  misdemeanor, 
and  upon  conviction  thereof  shall  pay  a  fine  of  not  less  than  two 
hundred  nor  more  than  five  hundred  dollars  or  be  imprisoned 
for  not  less  than  six  months,  or  both,  at  the  discretion  of  the 
court. 


152  THE   TAX  LAW. 

§  319.  Contracts  for  dies;  expenses  how  paid. —  The  state 
comptroller  is  hereby  directed  to  make,  enter  into  and  execute 
for  and  in  behalf  of  the  state  such  contract  or  contracts  for  dies, 
plates  and  printing  necessary  for  the  manufacture  of  the  stamps 
provided  for  by  this  article,  and  provide  such  stationery  and 
clerk  hire  together  with  such  books  and  blanks  as  in  his  dis- 
cretion may  be  necessary  for  putting  into  operation  the  pro- 
visions of  this  article;  he  shall  be  the  custodian  of  all  stamps, 
dies,  plates  or  other  material  or  thing  furnished  by  him  and  used 
in  the  manufacture  of  such  state  tax  stamps,  and  all  expenses 
incurred  by  him  and  under  his  direction  in  carrying  out  the  pro- 
visions of  this  article  shall  be  paid  to  him  by  the  state  treasurer 
from  any  moneys  appropriated  for  such  purpose. 

§  320.  Illegal  use  of  stamps ;  penalty. — Any  person  who  shall 
wilfully  remove  or  cause  to  be  removed,  alter  or  cause  to  be 
altered  the  cancelling  or  defacing  marks  of  any  adhesive  stamp 
provided  for  by  this  article  with  intent  to  use  the  same,  or  to 
cause  the  use  of  the  same  after  it  shall  have  been  once  used,  or 
shall  knowingly  or  wilfully  sell  or  buy  any  washed  or  restored 
stamp,  or  offer  the  same  for  sale,  or  give  or  expose  the  same  to 
any  person  for  use,  or  knowingly  use  the  same  or  prepare  the 
same  with  intent  for  the  further  use  thereof;  or  shall  wilfully 
use  any  counterfeit  stamp  or  any  forged  stamp  with  intent  to 
defaud  the  state  of  New  York,  shall  be  guilty  of  a  misdemeanor 
and  on  conviction  thereof  shall  be  liable  to  a  fine  of  not  less 
than  five  hundred  nor  more  than  one  thousand  dollars,  or  be  im- 
prisoned for  not  more  than  six  months,  or  by  both  such  fine  and 
imprisonment,  at  the  discretion  of  the  court. 

§  321.  Power  of  state  comptroller.— Every  person,  firm,  com- 
pany, association,  or  corporation,  making  a  sale,  agreement  to 
sell,  delivery,  or  transfer,  of  shares  or  certificates  of  stock  shall 
keep  a  true  record  of  such  transaction  and  the  date  thereof. 
The  state  comptroller  may  at  any  time  after  transfers  of  stock 
which  by  the  provisions  of  this  article  are  subject  to  a  state  stamp 
tax,  inquire  into  and  ascertain  whether  the  tax  imposed  by  the 
provisions  of  this  article  has  been  paid.  For  the  purpose  of  as- 
certaining such  fact  the  comptroller  shall  have  the  right  and  it 
shall  be  his  duty  to  examine  the  books  and  papers  of  any  person, 
firm,  company,  association  or  corporation  and  memoranda  of 
transfers  shall  remain  accessible  for  such  inspection  for  three 
months  from  their  respective  dates.  If  from  such  examination 
the  comptroller  ascertains  that  the  tax  provided  for  in  this  article 
has  not  been  paid  he  shall  bring  an  action  in  any  court  of  com- 
petent jurisdiction  for  the  recovery  of  such  tax  and  for  any  pen- 
alty incurred  by  any  person  under  the  provisions  of  this  article. 
(Thus  amended  ly  L.  1906,  chap.  414,  taking  effect  May  11, 
1906.) 


THE  TAX  LAW.  153 

§  322.  Civil  penalty;  how  recovered. — Any  person  who  shall 
violate  the  provisions  of  this  article  shall  in  addition  to  the 
penalties  herein  provided  forfeit  to  the  people  of  the  state  a  civil 
penalty  of  five  hundred  dollars  for  each  violation.  The  state 
comptroller  shall  bring  an  action  in  his  name  as  such  comp- 
troller in  any  court  of  competent  jurisdiction  for  the  recovery 
of  any  civil  penalty  and  all  moneys  collected  by  him  shall  be  paid 
into  the  state  treasury. 

§  323.  Effect  of  failure  to  pay  tax. —  No  transfer  of  stock 
made  after  June  first,  nineteen  hundred  and  five,  on  which  a  tax 
is  imposed  by  this  article,  and  which  tax  is  not  paid,  at  the  time 
of  such  transfer  shall  be  made  the  basis  of  any  action  or  legal 
proceedings,  nor  shall  proof  thereof  be  offered  or  received  in  evi- 
dence in  any  court  in  this  state. 

§  324.  Application  of  taxes. —  The  taxes  imposed  under  this 
article  and  the  revenues  thereof  shall  be  paid  by  the  state  comp- 
troller into  the  state  treasury  and  be  applicable  to  the  general 
fund,  and  to  the  payment  of  all  claims  and  demands  which  are  a 
lawful  charge  thereon. 

SCHEDULE  OF  LAWS  EEPEALED. 

Revised  Statutes.  Sections. 

Part  I,  ch.  13 All,  except  §  7 

of  tit.  VI. 
Part  III,  ch.  8,  tit.  XVII §§  28,  29,  30. 

Laws  of  Chapter. 

1835 11 All. 

1836 461 All. 

1841 341 All. 

1842 154 All. 

1842 318 All. 

1845 180 29,30,31,32. 

1846 327 All. 

1847 455 16. 

1847 482 All. 

1849 180 All. 

1851 176 All. 

1851 371 All. 

1852 46 All. 

1852 282 All. 

1853 69 All. 

1853 406 All. 

1853 469 All. 

1854 393 All. 

1855 37 All. 

1855..     83 All. 


154  THE  TAX  LAW. 

SCHEDULE  OF  LAWS  REPEALED  —  (Continued). 

Laws  of  Chapter.  Section*. 

1855 327 All. 

1855 427 AIL 

1856 183 All. 

1857 7 AIL 

1857 456 AIL 

1857 536..... AIL 

1857 585 AIL 

1858 110 All. 

1858 357 All. 

1859 312 AIL 

1860 209 All. 

1862 194 AIL 

1862 285 1. 

1865 453 AIL 

1866 136 All. 

1866 528 All. 

1866 820 All. 

1867 361 All. 

1867 694 All. 

1868 575 AIL 

1869 859 All. 

1870 280 All. 

1870 325 All.  • 

1870 492 Extract  from  § 

2,  authorizing 
comptroller  to 
designate  pa- 
pers in  which 
notice  of  Bale 
of  lands  for 
n  o  n  payment 
of  taxes  shall 
be  published. 

1870 COO 2,  3,  4,  5. 

1871 110 All. 

1873 327 All. 

1873 809 AIL 

1874 351 All. 

1875 331 All. 

1875 466 All. 

1875 474 AIL 

1876 49 All. 

1876 96 All. 

1876 101 All. 

1878 152 AIL 

1879 492 All. 

1880 80 All. 

1880 91 All. 

1880 269 All. 

1880 327 All. 

1880 448 All. 

1880 542 All. 

1880 552 All. 

1881 8 All. 

1881 166 All. 

1881 293 AIL 


THE  TAX  LAW.  155 

SCHEDULE  OF  LAWS  REPEALED  —  (Continued). 


Laws  of 

Chapter. 

Sections. 

1881  

361  

,  All. 

1881  

402  

,  5. 

1881  

433  

,  All. 

1881  

640  

,  All. 

1882  

151  

All. 

1882  

409  

312-327,   i 

' 

sive. 

1883  

342  

All. 

1883  

392  

All. 

1883  

397  

,  All. 

1883  

464  , 

,  All. 

1884  

57  

,  AIL 

1884  

153  

,  All. 

1884  

280  

,  All. 

1884  

353  

,  All. 

1884  

414  , 

All. 

1884  

435  

All. 

1884  

537  

,  AIL 

1885  

10  

AIL 

1885  

32  , 

All. 

1885  

201  

AIL 

1885  

215  , 

,  AIL 

1885  

340  , 

,  12. 

1885  

359  , 

AIL 

1885  

411  

All. 

1885  

453  , 

All. 

1885  

501  , 

,  AIL 

1886  

59  , 

AIL 

1886  

102  

,  AIL 

1886  

143  

,  All. 

1886  

266  

,  All. 

1886  

315  , 

AIL 

1886  

659  , 

1.  2,  3,  5, 

1886  

679  

AH. 

1887  

284  

AIL 

1887  

342  

All. 

1888  

110  

All. 

18P9  

191  

All. 

1889  

193  

AIL 

1889  

353  

AIL 

1889  

462  

All. 

1889  

463  , 

,  All. 

1889  

469  

All. 

1889  

563  

,  All. 

1890  

145  

All. 

1890...  

174  , 

,  All. 

1890  

206  

,  AH. 

1890  

497  , 

All. 

1890  

522  

AIL 

1890  

'.....  553  , 

,  A!L 

1P90  

556  

,  J*1L 

1891  

163  

,  >iir 

1891  

211  , 

AIL 

1891  

218  , 

,  AH. 

1892  

196  

AIL 

1892  

202  

L 

incln- 


156  THE  TAX  LAW. 


SCHEDULE  OF  LAWS  REPEALED  —  (Continued). 

Laws  of 

Chapter. 

Sectioi 

1892  

266  

AIL 

1892  

347  

AIL 

1892  

399  

AIL 

1892  

463  

,  AIL 

1892  

477....  

AIL 

1892  

529  

AIL 

1892  

,  565  

,  AIL 

1892  

661  

AIL 

1892  

668  

AIL 

1892  

713  

,  AIL 

1892  

714  

AIL 

1893  

199  

,  AIL 

1893  

498  

AIL 

1893  

525  

,  AIL 

1893  ... 

704  

,  AIL 

1893  ,.... 

711  

,  AIL 

1894  

,  196  

,  AIL 

1894  

312  

AIL 

1894  

,  562  

,  AIL 

1894  

,  713  , 

,  AIL 

1895  

,  378  

,  AIL 

1895  

,  418  , 

,  AIL 

1895  

,  425  

,  AIL 

1895  

,  515  

,  AIL 

1895  , 

,  556  , 

,  AIL 

1895  , 

,  558  

,  AIL 

1895  , 

608  , 

,  AIL 

1895  

895  

,  AIL 

naileries,  Game 

INDEX. 


ACTION :  Page 

against  delinquent  corporation    105 

for  sequestration  against  delinquent  corporation 137 

tax,  limitation  of  time  not  applicable   140 

ADMINISTRATORS : 

personal   property  in  possession  of,  where  taxed   10,  11 

assessment  of   24 

tax  on  transfers,  payment  112 

collection 112 

foreign,  to  pay  transfer  tax  on  transfer  of  securities 114 

AGENTS : 

personal  property  in  possession  of,  where  taxed 11 

assessment  of 24 

AGRICULTURAL  SOCIETIES : 

exemption  of  real  property   8 

APPEALS : 

to  tax   commissioners,   from   equalization   of  boards  of   super- 
visors    86 

how  brought 86 

how  conducted 87 

determination  of 87 

costs 87 

from  valuation  of  taxable  transfer  appraisers  121 

from  order  in  proceedings  to  review  assessment   133 

APPORTIONMENT: 

of  tax  on  premises  wrongfully  assessed  with  other  premises . . .  134 

APPRAISAL: 

of  values  of  estates  subject  to  transfer  117,  118 

of  contingent  estates   119 

life  estates,  remainder  or  reversion   118 

report  of  appraisers  120 

APPRAISERS,  TAXABLE  TRANSFER: 

to  be  appointed  by  comptroller  in  certain  counties 116 

salaries 116,  117 

county  treasurers  to  act  as   117 

proceedings  by  117 

report  of,  to  surrogate   120 

appeal  from  determination  of   121 


158  IXDEX. 

ARREARS :  rage, 

of  taxes  on  lands  of  non-residents   57 

ASSESSMENT: 

of  land  sold  or  leased  by  the  state 10 

of  personal  property,  deduction  when  not  allowed  10 

ascertaining  facts  for 14 

of  property  to  "  estate  "  of  decedent,  valid 16 

state  lands  in  forest  preserve   1(5 

bank  stock,  value  of  shares   17 

of  capital  of  individual  banker 20 

notice  of,   to  banks    21 

non-resident  real  property  22 

of  corporations  on  assessment-roll   23 

of  agent,  trustee,  guardian  or  executor   24 

omitted  property 24 

debts  due  non-residents  of  United  States 24 

complaints  as  to,  hearing  and  determination  25 

of  special  franchises,  when  to  be  filed 29 

hearing  before  tax  commissioners  32 

certiorari  to  review 33 

illegally  made,  reassessment  by  board  of  supervisors   38 

procedure  for  review  of 131 

writ  of  certiorari,  petition 131 

when  allowed 131,  132 

return  to 132 

proceedings  upon  return 132 

costs 133 

appeals  from  order 133 

illegal,  erroneous,  or  unequal,  refund  of  tax   133 

correction  of,  by  board  of  supervisors 134 

ASSESSMENT-ROLL : 

to  contain  six  columns   15 

corporations,  how  assessed  on   23 

completion,  notice  of  25 

correction  and  verification  of   26 

notice  of  filing  completed  27 

delivery  of,  to  supervisor   27 

special  franchise,  valuations  to  be  entered  in 30 

correction  of  errors  in,  by  boards  of  supervisors 37 

ASSESSORS: 

determination  of  residence  11 

to  ascertain  facts  for  assessment 14 

forest  preserve,  duties  as  to  state  lands  in  16 

banks,  list  of  stockholders  inspected  by 17 

to  hear  and  determine  complaints 25 

may  administer  oaths  and  take  testimony  26 


INDEX.  159 

ASSESSORS  —  Continued :  Page. 

correction  and  verification  of  tax-roll  26 

notice  of  filing  assessment-roll  27 

delivery  of  assessment-roll  to  supervisor   27 

apportionment  of  valuation  of  railroad,  telegraph,   etc.,  com- 
panies between  school  districts  27 

to  follow  forms  and  obey  instructions  of  tax  commissioners  . .  28. 

neglect  or  omission  of  duty 28 

special  franchises,  statements  of  valuations  to  be  delivered  to.     30 

valuations  to  be  entered  in  assessment-roll  30 

apportionment  between  school  districts  31 

tax  commissioners  to  furnish  information  to  84 

BAGGAGE  EXPRESS  CORPORATIONS: 

franchise  tax  on  earnings 93 

BANKER,  INDIVIDUAL: 

capital,  where  to  be  taxed 13 

assessment,  how  made  20 

BANKERS,  FOREIGN: 

tax  upon 97 

when  due 102 

reports  of 98 

BANKING  CORPORATIONS: 

not  to  pay  organization  tax 90 

foreign,  not  to  pay  license  tax 90 

tax  upon  capital   97 

not  subject  to  tax  on  capital  stock 92 

tax,  when  to  be  paid 102 

BANKS : 

stockholders,  how  taxed 13 

statements  to  be  furnished  assessors  by   17 

penalty  for  neglect  to  furnish 17 

list  of  stockholders,  open  to  inspection  of  assessors 17 

shares,  value  of,  how  ascertained   17 

rate  of  tax  upon  18 

levy  and  collection  of  tax  upon 18,  19 

collection  to  be  made  by  county  treasurer 20 

notice  of  assessment  to   21 

collection  of  taxes  assessed  upon  stock 44 

tax  on  transfer  of  securities  of  decedent  114 

transfer  tax,  deposit   in   129 

undertaking  to  be  given   129 

BENEVOLENT  CORPORATIONS: 

axemption  of  real  property   7 


160  INDEX. 

BEQUEST:  Page, 

to  executor  or  trustee,  tax  upon  114 

BOARD  OF  SUPERVISORS: 

duties  of,  as  to  taxation  of  banks 19,  20 

in  Nassau  county,  as  to  lands  sold  to  county 36 

equalization  of  valuations  by   36 

non-resident  real  property,  description  may  be  changed 36 

owners  of  rents  reserved,  review  of  assessment 37 

correction  of  errors  by  37 

reassessment  of  property  illegally  assessed  38 

levy  of  tax  by 39 

warrant  for  collection  of  taxes  39 

correction  of  illegal  assessments 134 

duties  as  to  mortgage  tax  147 

BOND: 

of  collector,  satisfaction  of   52 

of  recording  officers,  county  treasurers  and  chamberlain 148 

BONDS : 

issued  by  state  or  municipal  corporation,  exemption 7 

BOOKS: 

taxable  transfer,  to  be  furnished  by  comptroller 127 

entries  in,  by  surrogate 127 

BRIDGES : 

land  includes 4 

BUILDING  AND  LOAN  ASSOCIATIONS: 

not  to  pay  organization  tax   90 

foreign,  not  to  pay  license  tax  90 


CANAL  CORPORATIONS: 

franchise  tax  on  earnings   93 

CANCELLATION: 

of  taxes  by  comptroller   57 

returns  of,  to  board  of  supervisors 58 

of  sale  of  lands  for  unpaid  taxes 76 

when   set  aside    76 

CAPITAL  STOCK: 

taxation  of 13 

CEMETERY   CORPORATIONS: 

exemption  of  real  property  7 


INDEX.  161 

CERTIFICATES   OF   INCORPORATION:  Page. 

secretary  of  state  to  report  to  comptroller  106 

CERTIFICATES  OF  SALE. 

on  purchases  of  land  for  unpaid  taxes,  for  state  or  county..  63,  64 

to  purchaser 66 

new,  when  sale  is  set  aside 65,  66 

evidence  of  loss  of  70 

CERTIORARI: 

to  review  assessment  of  special  franchise 33 

corporation  tax,  review  of  determination  as  to 103 

regulations  as  to  writ    104 

petition  for  writ  of,  to  review  assessment 131 

contents  of 131 

presented  to  justice  of  supreme  court  or  at  special  term. .  131 

return  to  writ  of 132 

proceedings  upon 132 

costs  in   proceedings    133 

appeals  from  order    133 

CHARITABLE  CORPORATIONS: 

exemption  of  real  property   7 


CLERGYMEN: 

exemption  of  dwelling-houses  of  8 

of  property  belonging  to  9 

CLERK  OF  BOARD  OF  SUPERVISORS: 

statement  of  corporate  taxes  to  be  delivered  to  county  treas- 
urer          40 

of  valuation  to  be  delivered  to  comptroller 40 

COLLATERAL  INHERITANCES: 

tax  upon  (see  Taxable  Transfers)    108 

COLLECTION: 

of  tax  on  bank  shares    19,  20 

of  taxes,  by  sale  of  personal  property 43 

assessed  against  bank  stock  44 

against  telegraph,  telephone  and  electric  light  companies.  45 

on  rents  reserved    45 

of  unpaid  taxes  on  debts  due  non-residents  of  United  States .  .  46 

return  of  -warrant  for   46 

extension  of  time  for   

of  tax  against  corporations,  warrant  1 

of  transfer  tax,  proceedings  for    1 

of  tax  on  person  who  has  removed  from  county 135 

supplementary  proceedings   for    135 


162  INDEX. 

COLLECTORS:  Page- 

warrant  for  collection  of  taxes,  contents 39 

abstract  to  be  furnished  county  treasurer   41 

notice  of  time  of  receiving  taxes 42 

non-resident  may  demand  statement  of  amount  of  tax 43 

collection  of  taxes  by  43 

against  banks 44 

on   rents   reserved    45 

levy  upon  personal  property,  for  failure  to  pay  tax 43 

tax  on  part  of  lot  of  land,  receipt  of 47 

fees  of 48 

return  of  unpaid  taxes   48 

payment  of  money  collected    50 

of  surplus  collected   50 

extension  of  time  for  collection 50 

vacancy,  how  filled    51 

warrant,  when  executed  by  sheriff  51 

bond,  satisfaction  of  52 

losses  by  default 55 

receipts  for  taxes    55 

failure  to  pay  tax  collected,  order  of  county  court 136 

sheriff  to  collect  amount   136 

payment  over,  of  amount  collected 137 

liability  of  bondsmen  for  deficiency   137 

COLLECTOR'S  WARRANT: 

to  be  annexed  to  tax-roll,  contents   39 

abstract  to  be  furnished  county  treasurer 41 

COMPLAINTS : 

as  to  assessments,  hearing  and  determination   25 

statement  to  be  filed   25 

COMPLETION: 

of  assessment-roll,  notice  of   25 

what  to  contain,  and  how  posted   25 

COMPOSITION: 

of  tax  on  transfer    122 

COMPTROLLER: 

duties  of,   in  respect  to  assessment  of  state  lands  in   forest 

preserve  16 

borrow  money,  at  expense  of  county,  if  state  tax  is  not  paid . .  54 

accounts  with  county  treasurer    54 

direct  proceedings  against  county  treasurer    54 

non-resident   taxes,   admission   of    57 

payment  to  county  treasurer  of  arrears  of  taxes  on  lands  of 

non-residents  .  . 57 


INDEX.  163 

COMPTROLLER  —  Continued :  Page. 

cancellation  of  taxes 57 

return  of,  to  board  of  supervisors  58 

refund  of  overcharges   60 

notice  of  sale  of  lands  for  unpaid  taxes 61 

publication 63 

sale  of  lands  for  unpaid  taxes,  how  conducted 63 

purchases  for  state  or  county  63 

deed  of  lands   69 

effect  of  former 70 

appointment  of  taxable  transfer  appraisers    116 

receipt  of  payment  of  transfer  tax 126 

taxable  transfer  books  and  forms,  furnished  by 128 

duties  relative  to  apportionment  of  mortgage  tax  where  mort- 
gaged premises  are  situated  in  this  and  another  state..    144,  145 
duty,  upon  receipt  of  taxes  on  mortgages 146 

supervisory  power  over  county  treasurers 148 

stock  transfer  tax,  duties  as  to  stamps 151 

enforcement  of  collection   (see  Stock  Transfers) 152 

CONTINGENT  ESTATES : 

appraisal  of  value,  for  tax  on  transfer 119- 

CONTRACTS : 

for  sale  of  land,  deemed  mortgages  for  taxation 141 

CORPORATIONS: 

exemption  of  real  property  of  certain 7 

stockholders  not  to  be  taxed  on  stock 10- 

place  of  taxation  of  property  of 12 

capital  stock  of,  taxation  of 13 

reports  of,  to  assessors 21 

penalty  for  failure  to  make 21 

county  clerks  to  furnish  data  respecting 22- 

assessments  on  assessment-roll 23 

statement  of  taxes,  clerk  of  board  of  supervisors  to  deliver  to 

county  treasurer 40 

organization  tax 89 

not  to  apply  to  banks  and  loan  associations 90 

on  railroads 90 

foreign,  license  tax 90 

franchise  tax 91 

computed  on  dividends   91 

not  subject  to  tax  on  capital  stock 92 

additional  franchise  tax  on  transportation 93 

railroads,  not  operated  by  steam 94 

insurance,  franchise  tax  on  95 


164  INDEX. 

CORPORATIONS  —  Continued :  Page. 

reports  of,  liable  to  tax 98 

contents  of,  and  how  made  100 

value  of  stock  to  be  appraised  100 

comptroller  may  investigate  100 

notice  of  statement 101 

payment  of  tax  upon 102 

readjustment  of  tax,  by  comptroller  103 

review  of  determination  of  comptroller  103 

collection  of  tax,  warrant  for  104 

delinquent,  information  as  to  105 

employment  of  persons  to  assist  in  collection  of  tax  from.  105 

certificates  of  incorporation,  report  by  secretary  of  state 106 

exemptions  from  taxation  for  other  purposes  106 

application  of  taxes 107 

action  for  sequestration  against  delinquent 137 

CORPORATION   TAX.      (See   Corporations;    Franchise   Tax;    Or- 
ganization Tax,  etc.,  etc.) 

CORRECTION: 

of  assessment-roll '. 26 

of  errors  in  assessment-roll,  by  board  of  supervisors 37 

of  descriptions  of  lands   58 

COSTS : 

on  appeals  to  tax  commissioners 87 

in  proceedings  for  review  of  assessment 133 

COUNTY: 

purchase  of  lands  sold  for  unpaid  taxes  63 

COUNTY  CLERK: 

to  furnish  data  respecting  corporations 22 

reports  of  deeds,  etc.,  to  comptroller 127,  128 

duties  as  to  mortgage  tax  (see  Recording  Officers) 141-149 

COUNTY  COURT: 

apportionment  of  tax   134 

order  for  collection  of  tax  of  person  who  has  removed   from 

county 135 

when  collector  fails  to  pay  over  tax 136 

COUNTY  TREASURER: 

collection  of  tax  on  bank  shares  19,  20 

agents  of  non-residents  of  United  States  to  make  statement  to.  24 

railroad  and  electric  corporations  to  pay  taxes  to 44 

warrant  to  sheriff,  for  collection  of  taxes  on  debts  due  non- 
residents    46 

payment  to  creditors  of  county 53 

of  state  tax  .                    53 


INDEX.  165 

COUNTY  TREASURER  — Continued:  Page. 

fees  of,  to  be  retained 53 

accounts  with  comptroller 54 

proceedings    against,    comptroller    may    direct    supervisors   to 

begin 54 

losses  by  default 54,     55 

return  of  unpaid  non-resident  taxes  to  comptroller  in  certain 

counties *. 56 

sale  of  lands  for  unpaid  taxes  79 

notice  and  advertisement 79 

conveyance  by 81 

effect  of 81 

provisions  applicable  to  comptroller  apply  to 82 

tax  on  transfers  to  be  paid  to Ill 

receipt  of  payment  to  be  given   126 

appraiser  of  taxable  transfers   117 

fees  of,  on  account  of  transfer  tax   126,  127 

reports  of,  to  comptroller   128 

mortgage  tax  payable  to 146 

distribution,  how  made 146-148 

expenses  to  be  paid 146,  148 

subject  to  supervisory  power  of  comptroller 148 

bond,  amount  and  approval 148 

CREDITORS : 

of  county,  payments  by  county  treasurer 53 

CROSSINGS: 

of  streets,  when  not  deemed  special  franchise 5 

DEBTS : 

due  non-residents  of  United  States,  how  assessed  24 

collection  of  unpaid  taxes  upon 46 

DEDUCTION: 

in  assessment  of  personal  property,  when  not  allowed 10 

from  special  franchise  tax 33 

DEED: 

comptroller's,  for  lands  sold  for  unpaid  taxes 69 

cancellation  of,  by  payment  of  taxes 70 

evidence  of,  when  conclusive   70 

DEFINITIONS : 

tax  district 

county  treasurer 

land,  real  estate,  real  property   • 4,  141 

special  franchise *> 

personal  estate,  personal  property  5 


166  INDEX. 

DEFINITIONS  —  Continued :  Page. 

occupant,  occupancy 71 

premiums,  gross  premiums 96 

estate,  property 129 

transfer 129 

county  treasurer,  district  attorney  129 

mortgage  of  real  property 141 

executory  contracts  for  sale  of  land 141 

DELINQUENT: 

corporation,  information  as  to 105 

forfeiture  of  charter  105 

DESCRIPTIONS : 

imperfect,  correction  of 58 

supervisor  to  cause  map  or  survey  to  be  made 58 

DESPOLIATION: 

of  lands  sold  for  unpaid  taxes,  prohibited 68 

liability  for,  to  holder  of  tax  certificate 68 

DEVISES: 

to  executor  or  trustee,  tax  upon 115 

EDUCATIONAL  CORPORATIONS: 

exemption  of  real  property  ...» 7 

ELECTRIC  LIGHT  COMPANY: 

payment  of  taxes  by 44 

enforcement  of 45 

ELECTRIC  LIGHTING,  HEATING  AND  POWER  COMPANIES: 

franchise  tax  on 94 

reports  of 98 

EQUALIZATION: 

of  valuations  of  tax  districts   36 

appeals  to  tax  commissioners  86 

how  brought 86 

how  conducted 87 

determination  of 87 

costs 87 

EQUALIZATION,  STATE  BOARD  OF: 

how  constituted 85 

powers  and  duties 86 

ERRORS: 

correction  of,  by  board  of  supervisors 37 

upon  petition  of  assessors  37 

ESTATE: 

of  decedent,  assessment  to 16 


INDEX.  167 

EXECUTION: 

*  k*gc. 

property  exempt  from,  not  to  be  taxed 6 

EXECUTORS : 

personal  property  in  possession  of,  where  taxed 10,  11 

assessment  of 24 

tax  on  transfers,  payment   112 

collection  of 112 

on  devises  or  bequests  in  lieu  of  commissions 114 

foreign,  to  pay  transfer  tax  on  transfer  of  securities 114 

EXECUTORY  CONTRACTS: 

deemed  mortgages  for  purposes  of  taxation  141 

EXEMPTIONS: 

from  taxation 6 

report  of,  to  state  tax  commissioners  1 3a 

of  corporations,  from  state  tax  on  personal  property 106 

from  tax  on  transfers 110 

not  applicable  to  taxable  transfers   130 

of  mortgages  from  local  taxation  141,  142 

from  mortgage  tax    142 

EXPECTANCY,  ESTATES  IN: 

appraisal  of  value,  for  tax  on  transfer  120 

EXPRESS  COMPANIES: 

franchise  tax  on  earnings   93 

EXTENSION: 

of  time  for  collection  of  taxes 50 

renewal  of  collector's  bond  upon 50 

FARM  LANDS: 

divided  by  line  of  tax  district,  where  taxed 12 

FEES: 

of  collector 48 

of  county  treasurer  .  . .' 53 

on  account  of  transfer  tax 126,  127 

FERRY  CORPORATIONS: 

franchise  tax  on  earnings    , 93 

FIREMEN'S  ASSOCIATIONS: 

exemption  of  real  property  8 

FOREIGN  BANKERS : 

tax  upon   97 

when  due 102 

reports  of 99 


1G8  IXDEX. 

FOREIGN  CORPORATIONS:  Page. 

license  tax   90 

franchise  tax,  on  capital  employed  within  state 91 

FOREST  PRESERVE : 

state  property  in,  subject  to  taxation 6 

assessment  of  state  lands  in  16 

payment  of  taxes  on  state  lands  in  48 

FORMS : 

taxable  transfer  to  be  furnished  by  comptroller   127 

under  mortgage  tax  article.     (See  Mortgages,  Taxation  of.) 

FRANCHISES.     (See  Special  Franchise.)- 

to  use  streets,  included  as  lands   4 

FRANCHISE  TAX: 

on  corporations,  how  computed 91 

foreign  corporations 91 

certain  corporations  not  to  pay 93 

additional,  on  transportation  corporations 03 

on  elevated  or  railroads  not  operated  by  steam 94 

water-works,  gas,  electric  and  steam  companies 94 

insurance  companies 95 

computed  on  premiums 95 

trust  companies 96 

how  computed 96,  97 

savings  banks 97 

reports  of  corporations  paying 98 

contents  and  how  made 100 

when  to  be  paid 102 

GAS  COMPANIES: 

franchise  tax  on  94 

reports  of 98 

GRIEVANCE-DAY: 

for  hearing  complaints  as  to  assessments 25 

GRIEVANCES : 

day  for  hearing 25 

neglect  to  meet  for  hearing 28 

GROSS  PREMIUMS: 

definition  of 06 

GUARDIANS: 

personal  property  in  possession,  where  taxed 10,  11 

assessment  of 24 


INDEX.  169 

HIGHWAYS :  Pagf. 

franchises  to  use,  included  as  lands  4 

crossings,  when  not  deemed  special  franchise 5 

HISTORICAL  SOCIETIES: 

exemption  of  real  property  7 

HOMESTEAD : 

exempt,  to  be  taxed 6 

exemption  of  real  property  7 

INDIANS: 

lands,  exempt  from  taxation  6 

INDIVIDUAL  BANKER: 

place  of  taxation  of   13 

assessment  of,  how  made   20 

INFIRMARY  CORPORATIONS: 

exemptions  of  real  property  7 

INSURANCE  CORPORATIONS: 

personal  property,  when  exempt   9 

upon  co-operative  or  assessment  plan,  exemptions  of  moneys 

of 9 

foreign,  not  to  pay  license  tax  90 

not  to  pay  tax  on  capital  stock  92 

franchise  tax  on   95 

computed  on  premiums 95 

reports  of,  liable  to  pay 99 

contents  and  how  made  100 

when  to  be  paid   102 

LAND: 

defined  ( see  Real  Property )    4 

sold  by  the  state  to  be  taxed 10 

leased  by  the  state,  assessed  to  lessee  10 

sold  for  unpaid  taxes.      (See  Sale.) 

redemption  of 66 

conjointly  assessed 67 

despoliation  of,  prohibited   68 

unredeemed,  notice  to  be  published 69 

comptroller's  deed  for   69 

effect   of   former   deeds    70 

possession  of,  by  comptroller 71 

notice  to  occupants   71 

proof  of  service  of  72 

redemption  by  occupant 72,  73 

proceedings  thereupon 73 

notice  to  mortgagee 74 

redemption  by  mortgagee   75 


170  INDEX. 

LAND  — Continued: 

sold  for  unpaid  taxes  —  Continued :  Page. 

cancellation 76 

when  set  aside 76 

expenses  of  sale 77 

payment  of  money  into  state  treasury 78 

in  counties  not  containing  part  of  forest  preserve   79 

notice  of  sale 79 

advertisement,  and  sale,  how  conducted 70 

redemption SO 

conveyance  of  county  treasurer   81 

effect  of SI 

refund  of  purchase  money   82 

lands  belonging  to  state 82 

contracts  for  sale,  deemed  mortgages   141 

LAUNDRY  CORPORATIONS : 

not  to  pay  tax  on  capital 93 

LEVY: 

of  tax  by  board  of  supervisors  39 

on  personal  property,  for  failure  to  pay  tax 43 

LIBRARY  CORPORATIONS: 

exemption  of  real  property   7 

LIFE  INSURANCE  CORPORATIONS: 

accumulations  of,  when  exempt   9 

LIMITATION  OF  TIME : 

not  to  apply  to  tax  actions  140 

LITERARY  CORPORATIONS : 

exemption  of  real  property  7 

LOAN  ASSOCIATIONS: 

accumulations  of,  when  exempt 9 

LOCAL  TAXATION: 

exemption  of  mortgages 141,  142 

LOT: 

payment  of  tax  on  part  of 47 

LOT  DIVISIONS: 

abandonment  of 28 

MANUFACTURING  CORPORATIONS : 

not  to  pay  tax  on  capital  93 

MAP: 

and  survey  of  lands  imperfectly  described  58 

of  lands  sold  for  unpaid  taxes 62 


INDEX.  171 

MEDICAL  SOCIETIES: 

P&ge 
certain,  exemptions  .......................  i  Q 

MINING  CORPORATIONS: 

not  to  pay  tax  on  capital  ......................  93 

MINISTER  : 

exemption  of  property  of  .......................  3 

MISSIONARY  CORPORATIONS: 

exemption  of  real  property  ....................  j 


MORTGAGES,  TAXATION  OF: 

apportionment,  mortgaged  premises  in  two  or  more  counties.  144-146 
in  this  and  another  state  .......................   144    145 

procedure,  rules  regulating  ............................   145 

assignment  of  mortgage,  effect  of  non-payment  of  tax  upon  ____   143 

bonds  of  recording  officers,  county  treasurers  and  chamberlain  .  .   148 
approval  by  comptroller  ...............................   148 

contracts  for  sale  of  land,  deemed  mortgages  ..................   141 

definition,  real  property  ...................................   141 

mortgage  of  real  property  ..............................    141 

executory  contracts  for  sale  of  land  ......................    141 

discharge  of  mortgage,  effect  of  non-payment  of  tax  upon  ......    143 

evidence,  effect  of  nonpayment  of  tax  upon  receipt  of  mortgage 
in  ....................................................    143 

exemptions,  from  local  taxation  ........................    141,  142 

from  mortgage  tax  ....................................   142 

extension  of  mortgage,  effect  of  non-payment  of  tax  upon  ......    143 

foreclosure  of  mortgage,  effect  of  non-payment  of  tax  upon  .....   143 

release  of  mortgage,  effect  of  non-payment  of  tax  upon  ........   143 

rules   and  regulations  respecting   apportionment   between  the 

counties,  etc  ....................................    144-146 

governing  recording  officers    .................  "  ..........    148 

county  treasurers  and  chamberlain  .....................    148 

supervisory  power  of  tax  commissioners  over  recording  officers.  148 
of  comptroller  over  county  treasurers  ....................    148 

tax,  rate  of,  for  recording  mortgage  ..........................    142 

mortgages  executed  after  July  1,  1906  ..................   142 

payment  of  tax  on  recording  mortgage  ...................    142 

duty  of  recording  officer  to  indorse  receipt  upon  mortgage.  .   142 


172  INDEX. 

MORTGAGES,  TAXATION  OF  —  Continued : 

tax,  rate  of  —  Continued :  Page 

receipt,  indorsed  upon  mortgage,  to  be  recorded  therewith. .  142 

record  of,  as  conclusive  proof  of  payment  of  tax 142 

effect  of  nonpayment  of  tax 142,  143 

duty  of  recording  officer  not  to  record  unless  tax  paid.  142,  143 

distribution,  how  made   146,  148 

payment  to  county  treasurers  or  chamberlain 146 

deduction  of  office  expenses 146,  148 

one-half  paid  to  the  state 14G 

application  of  balance 14S,  147 

list      of     mortgages,      and      location     of     mortgaged 

premises 146,  147 

duties  of  board  of  supervisors 147 

among  towns,  cities,  villages  and  school  districts.   147,  14S 

trust  mortgages,  made  by  corporations,  how  taxable 143 

statement  of  present  amount  of  secured  indebtedness 143 

statement  as  basis  of  computation  of  tax 143 

statement  conclusive  against  mortgagee,  etc ' 143 

payment  of  tax  on  amounts  of  principal  indebtedness  sub- 

sequentty  advanced,  etc 143 

duty  of  recording  officer  upon  payment  of  tax  on  trust 

mortgages 143 

indorsement  upon  mortgage  of  receipt  for  tax 143 

effect  of  such  receipt  143,  144 

tax  on  prior  advance  mortgages,  how  paid 149 


MUNICIPAL  CORPORATIONS : 

property  exempt  from  taxation 6 

bonds  of,  when  exempt 7 

NASSAU  COUNTY: 

equalization,  lands  sold  for  taxes  to  county  to  be  excluded 36 

NAVIGATION  CORPORATIONS: 

franchise  tax  on  earnings 93 

NEW  YORK  COUNTY: 

surrogates'  taxable  transfer  assistants 123 


INDEX.  173 

NON-RESIDENTS:  Page. 

bonds,  mortgages,  notes,  etc.,  of,  when  exempt  ................  9 

capital  invested  in  state,  taxation  of  ........................  10 

personal  property  of,  not  invested  as  capital,  taxation  of  .......  10 

real  property,  assessment  of  ................................  22 

survey  and  maps  of  ....................................  22 

boards  of  supervisors  may  change  description  of  ..........  36 

of  United  States,  debts  owing  to,  assessment  ..................  24 

statement  of  debts  to  be  furnished  by  agents  .............  24 

collection  of  unpaid  taxes  on  debts  due  .................  48 

owners  of  rents  reserved,  review  of  assessment  ................  37 

notice  by  collector  of  receipt  of  tax  warrant  ..................  43 

may  demand  statement  from  collector  .......................  43 

return   of   unpaid   taxes,   if   county   contains   lands    in   forest 

preserve  .............................................  56 

admission  of,  by  comptroller  ................................  57 

arrears  of  taxes  on  lands  of  ................................  57 

taxes,  when  and  how  paid  to  comptroller  ....................  59 

NOTICE: 

of  assessment  to  banks  ....................................  21 

completion  of  assessment-roll  and  of  review  ..................  25 

contents  and  how  posted    .............................  25 

of  filing  completed  assessment-roll  ...........................  27 

of  hearing  on  special  franchise  assessment  ...................  32 

of  receipt  of  tax  warrant,  posted  by  collector  .................  42 

publication  of,  in  a  city  ................................  43 

to  non-residents   ........................................  43 

under  mortgage  tax  article.      (See  Mortgages,  Taxation  of.) 

OCCUPANCY: 

terms  means  what  ........................................  '1 


OCCUPANTS  : 

of  lands  sold  for  unpaid  taxes,  notice  to  ....................  71 

who  are    .............................................  '  * 

proof  of  service  of  notice  ..............................  72 

79 
redemption   by    ....................................... 

before  service  of  notice  ............................     73 

OMITTED  PROPERTY: 

assessment  of  ........................................... 

correction  of  assessment-roll  to  include,  by  supervisors  ........     37 


174  INDEX. 


ORGANIZATION  TAX: 


Page. 


on  capital  stock  of  corporations 

not  to  apply  to  banks 90 

OVERCHARGES: 

deduction,  when  land  has  been  returned  as  containing  too  large 

a  quantity 60 

refund,  when  tax  has  been  paid 60 

OVERPAID: 

comptroller  may  draw  warrant  for  excess 60 

PALACE  AND  SLEEPING  CAR  CORPORATIONS: 

franchise  tax  on  earnings  93 

PENSION  MONEY: 

real  property  purchased  with,  taxation  of 6 

exemption  of,  how  granted    6 

PERSONAL  PROPERTY: 

defined 5 

liable  to  taxation 5 

deduction  in  assessment  of 10 

of  non-residents,  invested  in  this  state  as  capital,  taxation  of . .  10 

of  non-residents,  not  invested  as  capital,  taxation  of 10 

place  of  taxation  of 10 

when  under  control  or  in  possession  of  agent,  etc 11 

of  corporations 12 

of  non-residents 10 

exempted  from  tax  on  mortgage 143 

PHARMACEUTICAL  SOCIETY: 

exemption  of  real  property 10 

PIERS:      , 

land  includes 4 


PIPE-LINE  CORPORATIONS: 

assessors  to  apportion  valuation  between  school  districts 27 

franchise  tax  on  earnings 93 


INDEX.  175 

PLACE  OF  TAXATION:  Page 

of  personal  property  of  residents  ............................  10 

under  control  of  agents,  etc  .............................  II 

of  personal  property  of  non-residents  ..................  ......  10 

of  real  property   ......................................  1  1 

divided  by  line  of  tax  district  ..........................  12 

of  corporations  .  .   ...  .....................................  12 

of  individual  banker   ....................................  13 

of  mortgages  .............................................  141 

PREMIUMS  : 

definition  of    .............................................  96 

PRIEST: 

exemption  of  property  of  ...................................  8 

RAILROAD  CORPORATIONS: 

valuation  to  be  apportioned  between  school  districts  ..........  27 

payment  of  tax  to  county  treasurer  ..........................  44 

organization  tax,  how.  paid  .................................  90 

additional  franchise    tax  on  earnings  .......................  93 

not  operated  by  steam,  tax  on  earnings  ......................  94 

reports  of,  liable  to  tax  ...................................  9S 

RAILROAD  STRUCTURES  : 

included  as  land   .........................................  4 

REAL  ESTATE  : 

defined   (  see  Real  Property)    ...............................  4 

REAL  PROPERTY: 

what  constitutes  ......................................     4,  141 

liable  to  taxation    ........................................  5 

exemption  of,  when  purchased  with  pension  money  ...........  6 

of  charitable,  benevolent,  etc.,  corporations  ..............  7 

of  firemen's  associations  ..............................  8' 

of  minister  or  priest  ..................................  ^ 

place  of  taxation  of  ....................................... 

Avhen  divided  by  line  of  tax  district  .................... 

of  corporations  ..................................... 

non-resident,  assessment  of   ................................ 

/surveys  and  maps  of  ...................................  22 
boards  of  supervisors  may  change  description  of  real  prop- 

3« 


reassessment  of  unpaid  taxes  on  ............................ 

mortgages,  taxation.      (See  Mortgages,  Taxation  of.) 


17G  INDEX. 

REASSESSMENT:  Page 

of  property  illegally  assessed 38 

of  unpaid  taxes  on  resident  real  property 52 

RECEIPTS: 

for  taxes,  collector  to  furnish 55 

state  board  to  prescribe  forms 55 

RECORDING  OFFICERS: 

mortgage  tax,  payment  to  (see  Mortgages,  Taxation  of) 142 

instrument  not  recorded  before  payment 142,  143 

receipts  to  taxpayers   142 

payment  of  amount  apportioned  to  other  counties 146 

expenses  to  be  paid 146,  148 

duties  upon  payment  of  tax  on  trust  mortgages 143 

supervisory  power  of  tax  commissioners 148 

bond,  amount  and  approval 148 

RECORDING  TAX  ON  MORTGAGES.     (See  Mortgages,  Taxation 
of.) 

REDEMPTION: 

of  lands  sold  for  unpaid  taxes 66 

conjointly    assessed   67 

by  occupants 72 

before  service  of  notice 73 

proceedings  thereupon 73 

by  mortgagee 75 

of  lands  sold  by  county  treasurer 80 

when  bid  in  by  county  and  excluded  from  tax- roll 81 

notice,  expense  of  publishing 83 

of  mortgages  sold  for  unpaid  taxes 157 

REFUND: 

of  tax  on  transfer,  erroneously  paid 113 

of  tax  paid  on  illegal  assessment 133 

REGISTER  OF  DEEDS.     (See  Recording  Officers.) 

RELIGIOUS  CORPORATIONS : 

exemption  of  real  property 7 

dwelling-houses  and  lots  used  by  clergymen 8 

REMOVAL: 

of  person   legally  taxed,   from  county,  county  court  to  issue 

order 135 


INDEX.  177 

RENTS  RESERVED:  Page. 

taxable  to  whom 11 

of  non-residents,  review  of  assessment 37 

collection  of  taxes  upon 45 

REPORTS : 

of  corporations,  to  assessors    21 

penalty  for  failure  to  make 21,  22 

of  corporations  liable  to  tax  98 

contents,  and  how  made  100 

of  certificates  of  incorporation  by  secretary  of  state 106 

of  surrogate  and  county  clerk  to  comptroller 128 

of  county  treasurer  to  comptroller  128 

RESIDENCE: 

in  tax  district,  how  determined   11 

controversy  as  to,  tax  commissioners  may  determine 11 

RETURN: 

of  unpaid  taxes  by  collector  48 

when  collection  has  been  enjoined 49 

REVIEW: 

of  assessment,  notice  of  meeting  for 25 

SAFE-DEPOSIT   COMPANY: 

tax  on  transfer  of  securities  of  decedent 114 

SALE: 

of  personal  property  by  collector,  for  payment  of  tax 43 

of  lands,  for  unpaid  taxes,  notice 61 

publication  of  notice 62 

maps  to  be  furnished  by  supervisor    62 

how  conducted 63 

purchases  for  state  or  county 63 

withdrawal  of  lands  upon  which  the  state  has  a  lieu 64 

bid  of  purchaser,  when  paid   65 

certificate  of,  to  purchaser   .  65 

new,  when  sale  is  set  aside   65,  66 

evidence  of  loss  of  70 

notice  to  occupants 71 

proof  of  service  of 72 

redemption  by  occupant 72,  73 

lien  of  mortgage  not  affected  74 

notice  to  mortgagee    74 

redemption  by  mortgagee   75 

cancellation 76 

when  set  aside 76 

expenses  of  sale 77 

13 


178  INDEX. 

SALE  —  Continued :  Page. 

of  lands,  payment  of  money  into  state  treasury 78 

in  counties  not  containing  portion  of  forest  preserve 79 

notice  of  sale 79 

conduct  of 79 

lists  to  be  published,  contents    80 

redemption 30 

of  real  property  sold  to  county  and  excluded  from 

tax-roll 81 

notice,  expense  of  publishing    83 

conveyance  by  county  treasurer   81 

effect  of  conveyance   81 

refund  of  purchase  money   82 

lands  belonging  to  state 82 

purchased  by  county  of  Nassau,  excluded  from   tax- 
rolls  36 

tax,  surplus  in  hands  of  supervisor   138 

of  mortgage  for  delinquent  taxes  157 

SATISFACTION: 

of  collector's  bond  52 

SAVINGS  BANKS: 

deposits,  exemption  of 9 

not  to  pay  tax  on  capital  92 

franchise  tax  on  surplus   97 

reports  of,  liable  to  pay   99 

when  to  be  paid 102 

SCHOOL  DISTRICTS: 

apportionment  of  valuation  of  railroad,  telegraph,   etc.,  com- 
panies between 27 

of  special  franchises 31 

SECRETARY  OF  STATE: 

reports  of  certificates  of  incorporation  106 

SEQUESTRATION: 

attorney-general   to  bring   action   for,  against   delinquent   cor- 
poration    137 

SHERIFF: 

warrant  to,  for  collection  of  debts  due  non-residents  of  United 

States 46 

return  of ;  neglect  to  make   46 

when  to  execute  collector's  warrant    11 

to  execute  order  on  collector  failing  to  pay  tax 136 

SPECIAL  FRANCHISE: 

defined  fi 

not  to  include  street  crossings   5 


INDEX.  171) 

SPECIAL  FRANCHISE  —  Continued :  PaKP 

column  in  assessment-roll  for 1  :> 

valuation  of,  to  be  annually  fixed  29 

statement  to  be  filed  with  clerk  of  city  or  town 2!) 

assessments,  when  filed  in  several  cities  29 

copy  of  statement  to  be  delivered  to  assessors 30 

to  be  entered  in  assessment-roll   30 

apportionment  among  school  districts  31 

reports  to  state  board  of  tax  commissioners 31 

hearing  on  assessment   32 

certiorari  to  review  assessment 33 

appearance  by  state  boord  by  special  counsel 33 

payment  of  his  costs,  expenses,  etc 33 

deduction  from  tax  for  local  purposes 33 

tax  not  to  affect  other  tax 35 

STATE: 

property  exempt  from  taxation  6 

bonds  issued  by,   exemption 7 

assessment  of  land  leased  or  sold  by 10 

of  lands  in  forest  preserve 16 

lands  in  forest  preserve,  payment  of  taxes 48 

purchase  by  comptroller  for,  of  land  sold  for  unpaid  taxes ....  63 

lands,  possession  of 71 

wild,  vacant,  forest,  publication  of  list 71 

STATE  BOARD  OF  TAX  COMMISSIONERS.     {See  Tax  Commis- 
sioners, State  Board  of.) 

STATE  TAX: 

payment  by  county  treasurer 53 

demand  for,  by  comptroller 54 

STEAMBOAT  CORPORATIONS : 

franchise   tax   on  earnings 93 

STEAM  HEATING  AND  PO\YER  COMPANIES: 

franchise  tax  on  

reports  of   98 

STOCK  TRANSFERS: 

tax  imposed,  rate    1 

transactions   subject   to * 

penalty  for  failure  to  pay 

effect  of  failure  to  pay 1 

application  of  amount  collected 1 

adhesive  stamps  to  be  affixed 1 

how  prepared  and  sold  1 

canceling ;  penalty  for  failure 1 

contracts  for  dies 1 

expenses,  how  paid   1 

illegal  use,  penalty 1 

civil  penalty;  how  recovered 153 


180  INDEX. 

STOCKHOLDERS.      (See  Corporations;   Capital  Stock.)  page. 

when  not  to  be  taxed    10 

of  bank,  taxable  on  shares   13 

list  of,  subject  to  inspection  of  assessors 17 

no  deduction  from  tax  on  shares  18 

STREETS: 

franchises  to  use,  included  as  land  4 

crossings,  when  not  deemed  special  franchise  5 

SUPERVISOR: 

delivery  of  assessment-roll  to   27 

SUPPLEMENTARY  PROCEEDINGS: 

for  collection  of  tax  135 

SURPLUS : 

from  tax  sale,  in  hands  of  supervisor 13$ 

SURROGATE: 

duties  in  respect  to  transfer  tax  115 

determination  of,  upon  report  of  appraiser 120 

transfer  tax  assistants  in  New  York  county 123 

in  Kings  and  other  counties   123,  124 

proceedings  for  collection  of  tax   124,  125 

reports   to  comptroller    128 

SURVEY: 

map  and,  of  lands  imperfectly  described 58 

TAXABLE  TRANSFERS: 

how  taxed 108 

exceptions  and  limitations 1 10 

to  certain  corporations,  not  to  be  taxed 110 

lien  of  tax  upon 112 

payment  of  tax Ill 

when  to  be  made   Ill 

executor,  administrator  or  trustee  not  entitled  to  accounting 

until  tax  is  paid 1 12 

deduction  of  tax  from  legacy  or  distributive  share   112 

interest,  if  tax  is  not  paid   1 12 

discount,  if  tax  is  paid  within  six  months  Ill 

refund  of  tax  erroneously  paid   113 

devises  or  bequests  to  executors  or  trustees 114 

safe  deposit  company  or  bank  where  securities  are  deposited 

to  notify  comptroller 114 

jurisdiction  of  the  surrogate  in  respect  to  115 

appraisers  in  certain  counties   110 

salaries 116,  117 

county  treasurer,  to  act  as 117 

proceedings  by 117 

report  of,  to  surrogate  120 


INDEX.  181 

TAXABLE  TRANSFERS  — Continued:  Pagc< 

appraisal  of  values  of  117}  us 

of  contingent  estates    119 

of  estates  in  expectancy   120 

life  estates,  and  remainder    118 

appeal  to  surrogate 121 

determination  of  values  and  tax  by  surrogate 120 

notice  to  persons  interested   120 

reappraisal  upon  application  to  supreme  court 121 

composition  of  tax 122 

surrogates'  assistants  in  New  York  county   123 

in  Kings  and  other  counties   123,  124 

proceedings 'for  collection  of  tax  by  district  attorney 124,  125 

receipt  of  payment   of  tax  from  county  treasurer  or  comp- 
troller    126 

fees  of  county  treasurer   126,  127 

books  and  forms  to  be  furnished  by  comptroller 127 

entries  in,  by  surrogates   127 

reports  of  surrogate  ^"d  county  clerk  to  comptroller....    127,  128 

of  county  treasurer 128 

of  comptroller  to  state  treasurer   128 

taxes,  deposit  of,  ^n  banks   128 

undertaking  of  banks 129 

application  of 129 

exemption  in  section  4.  not  applicable   ].?0 

definitions ;  "  estate,"  "  property,"  "  transfer  "   129 

TAXATION : 

property  subject  to    5 

exemptions  from 6 

of  capital  of  non-resident   10 

place  of,  of  personal  property  of  residents   10 

of  banks 18-20 

of  mortgages 141-165 

TAX  COMMISSIONERS,  STATE  BOARD  OF: 

residence,  questions  to  be  determined  by   11 

special  franchises,  assessment  of   29 

statement  of  valuations  to  be  sent  to  town  and  city  clerks.  29 

written   report  of.  contents,  etc 31 

hearing   o'i    valuntion    32 

certiorari  to  review  assessment 33 

appearance  by  state  board  by  special  counsel 33 

payment  of  his  costs,  expenses,  etc 33 

notice  of  filing  statement   33 

appointment  of,  salary 84 

powers  and  duties 84 

secretary  and  agents  and  officers 85 

report  of,  to  legislature   85 

visit  counties 85 


182  INDEX. 

TAX  COMMISSIONERS,  STATE  BOARD  OF  —  Continued :  Page. 

members  of  state  board  of  equalization   85 

appeals  to,  from  equalization  of  boards  of  supervisors   86 

how  brought  and  conducted  86,  87 

determination  of 87 

costs 87 

mortgage  tax,  duties  under.     (See  Mortgages,  Taxation  of.) 

lists  of  mortgages,  form  prescribed   148 

one  to  be  filed  with 148 

correction  of  clerical  errors   148 

statements  by  mortgage  owners,  one  to  be  filed  with 151 

appeals  regulated 153,  154 

forms  prepared  by 154,  155 

apportionment  of  tax  where  land  mortgaged  is  in  two  or 

more  counties 144 

in  this  and  another  state 144 

procedure,  rules  regulating 145 

certificates  of  determination  to  be  filed 145 

general  supervisory  power  over  recording  officers 148 

TAX  DISTRICT: 

defined 4 

person  to  be  taxed  in,  for  personal  property 10 

residence  in,  for  purpose  of  taxation 11 

real  property  in,  how  assessed 11 

divided  by  line  of 12 

assessment  districts,  division  into   14 

TAX-ROLL: 

warrant  to  collector  to  be  annexed  to 39 

in  Nassau  county,  lands  sold  to  county  at  tax  sale  to  be  ex- 
cluded    36 

TAX  SALE  CERTIFICATE  (see  Certificate  of  Sale) 68 

TELEGRAPH  CORPORATIONS : 

assessors  to  apportion  valuation  between  school  districts 27 

payment  of  tax  to  county  treasurer 44 

tax  against,  how  enforced 45 

franchise  tax  on  earnings 93 

TELEPHONE  CORPORATIONS : 

assessors  to  apportion  valuation  between  school  districts 27 

payment  of  tax  to  county  treasurer 44 

tax  against,  how  enforced 45 

franchise  tax  on  earnings 93 


INDEX.  183 

TELEPHONE  LINES:                                                                                  Page, 
included  as  land 4 

TENANT: 

payment  of  tax  by,  may  be  deducted  from  rent 47 

TITLE  GUARANTY  CORPORATIONS: 

not  to  pay  tax  on  capital 92 

TOWN  CLERK: 

duty  to  mail  to  assessors  notice  of  filing  of  data  respecting  cor- 
porations       22 

TRANSFERS: 

tax  upon  ( see  Taxable  Transfers) 103 

of  stock,  tax  on 150-153 

TRANSFER  TAX.     (See  Taxable  Transfers.) 

TRANSFER  TAX  CLERKS: 

in  several  counties   123,  124 

in  New  York  county   123 

TRANSPORTATION  CORPORATIONS : 

additional  tax  upon  earnings   93 

reports  of 98 

tax,  when  due 102 

TRUST  COMPANIES: 

not  to  pay  tax  on  capital 92 

franchise  tax,  how  computed 96,  97 

reports  of,  liable  to  pay  99 

when  to  be  paid  102 

tax  on  transfer  of  securities  of  decedent  114 

deposit  in 129 

undertaking,  on  deposit  129 

payment  of  mortgage  tax  by 151-153 

TRUSTEES: 

personal  property  in  possession  of,  where  taxed 10,  11 

assessment  of 24 

tax  on  transfers,  payment   112 

collection 112 

on  devises  or  bequests  in  lieu  of  commission   114 

foreign,  to  pay  transfer  tax  on  transfer  of  securities 114 

UNITED  STATES: 

property  exempt  from  taxation   6 

deposit  fund  mortgages  exempt  142 

UNPAID  TAXES: 

return  of,  by  collector   48 

when  collection  has  been  enjoined   49 

on  resident  real  property,  reassessment 52 


184:  INDEX. 

UNPAID  TAXES  —  Continued:  Page. 

on  lands  of  non-residents  in  certain  counties 56 

rejection  of,  by  comptroller 56 

admission  of,  by  comptroller    57 

sale  of  lands  for,  by  comptroller,  notice   61 

publication  of  notice  of   62 

maps  be  furnished  by  supervisor 62 

how  conducted   63 

withdrawal  of  lands  upon  which  state  has  lien 64 

bid  of  purchaser,  when  paid   65 

certificate   of,   to   purchaser    65 

new,  when  sale  is  set  aside  65,  66 

redemption  of  land  sold  for   66 

when   conjointly   assessed    68 

unredeemed  lands  sold  for,  notice   69 

lands  sold  for,  comptroller's  deed   G9 

notice  to  occupants   71 

redemption  by  mortgagee   75 

cancellation  of  sales    76 

when  set  aside 76 

expenses  of  sale ." .  77 

payment  of  proceeds  of  sale  into  state  treasury 78 

in  counties  not  containing  portion  of  forest  preserve   ....  79 

notice  of  sale 79 

conduct  of  sale 79 

redemption 80 

conveyance  by  county  treasurer  81 

effect  of 81 

sale  of  mortgages  for 157,  158 

UNREDEEMED  LANDS: 

sold  for  unpaid  taxes,  publication  of  notice 69 

VACANCY: 

in  office  of  collector,  how  filled 51 

VALUATIONS: 

equalization  of,  by  supervisors   36 

statement  of,  to  be  delivered  to  comptroller  40 

of  estates  subject  to  transfer  tax * 117,  118 

VERIFICATION: 

of  assessment-roll 26 

VESSELS: 

exemption   of,  owned  by  American   citizens,   or   domestic  cor- 
porations    9 

VILLAGES: 

valuation  of  special  franchises  in 30 

distribution  of  mortgage  tax  among 160 


INDEX.  185' 

WARRANT:  Page. 

for  collection  of  taxes,  contents  39 

abstract  to  be  furnished  county  treasurer 41 

of  taxes  on  debts  due  non-residents 46 

collectors,  when  sheriff  to  execute   51 

for  collection  of  tax  against  corporation 104 

WATER-WORKS  CORPORATIONS : 

franchise  tax  on   94 

reports  of 98 

WHARVES : 

land  includes 4 

WILD  LANDS: 

divided  by  line  of  tax  district,  where  taxed 12 


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